WorkCover insurance is compulsory for Victorian businesses. This insurance provides coverage to employers in the event that their workers sustain injuries or become ill due to work-related factors. If you have been injured and your employer is deemed responsible, their insurance company will be responsible for paying the compensation.

You may be eligible to file a claim through WorkCover if you have been injured at work or if you have a pre-existing injury or illness that has worsened as a result of your employment. The WorkCover compensation scheme extends its coverage to all injured employees, including part-time and casual workers. Additionally, subcontractors may also be eligible to receive compensation through WorkCover.

If you have been injured at work, taking the necessary steps to protect your rights and entitlements is important. Firstly, report the incident and your injury to your employer as soon as possible. You should then contact WorkSafe Victoria and complete a Worker’s Injury Claim Form. Complete questions 1-6 in Part A. After this, give the form to your employer to complete Part B. Your employer then has a legal duty to complete Part B of the Worker’s Injury Claim Form and submit it to their WorkSafe Agent along with your Certificate of Capacity within 10 calendar days unless the claim is for limited medical costs only.

If necessary, you can give the form directly to your employer’s WorkCover Agent or WorkSafe. Next, visit your local doctor and obtain a WorkSafe Certificate of Capacity. This should also be given to your employer or the WorkCover Agent. If your claim is not accepted within 30 days, it is important to contact the Agent for a response. Finally, contacting a lawyer for legal advice about your WorkCover claim is advisable to protect your rights and entitlements.

The WorkCover Insurer will notify you and your employer in writing that your claim has been accepted. The notification will include details about calculating your pre-injury average weekly earnings (PIAWE). Your employer must start paying on your usual days within 7 calendar days of WorkSafe Agent accepting your claim. Your employer is required to continue paying you as long as you provide valid Certificates of Capacity, even if you have resigned from your workplace.

WorkCover insurance covers those workers injured at work or suffering a work-related illness. You might be entitled to benefits. These benefits are listed within the statutory WorkCover scheme. These can include the following:

• Medical and Like Expenses
• Weekly Payments
• Impairment Benefit
• Common Law Damages

Once you have an accepted WorkCover claim, you will generally be entitled to all reasonable expenses incurred due to the injury. This can include:

• Expenses to treat your injury (for example, doctors, medication, physiotherapy, chiropractic)
• Personal equipment to assist you
• Rehabilitation
• Attendant care, including domestic help, transportation, and modifications to your home

Note: If the WorkCover insurer declines to pay for any medical and like expenses, you should obtain your case manager’s copy of that decision. You have the right to challenge these decisions at the Workplace Injury Commission within 60 days of that decision.

You may be entitled to weekly payments if you cannot work or can only perform modified duties or hours due to your injuries.

The below table provides an outline of the entitlement to payments:

You may be entitled to weekly payments if you cannot work or can only perform modified duties or hours due to your injuries.

For the first 13 weeks, these payments are assessed at 95% of your pre-injury average weekly earnings (PIAWE). From 14 weeks onwards, weekly payments are assessed at 80%. Pre-injury shift and overtime allowances are included in your weekly payments for the first 52 weeks. If you have received 52 weeks or more of weekly payments and continue to receive them, your employer is also required to pay superannuation.

Weekly payments typically last up to 130 weeks. However, in certain circumstances, you may be able to receive these benefits beyond 130 weeks.

While receiving weekly payments, you must make reasonable efforts to participate in occupational rehabilitation and return-to-work plans. Your employer is responsible for keeping your pre-injury employment available for at least 52 weeks.

If your weekly payments are suspended, reduced, or terminated, Barbante Personal Injury Lawyers will advise you accordingly. During the first 52 weeks, your PIAWE includes overtime and shift allowances. However, after this period, these additional earnings are no longer considered part of your PIAWE, which could result in a reduction of payments for some workers.

After 130 weeks of incapacity, the insurer will evaluate whether you have a current work capacity. If you have no work capacity and that condition is likely to continue indefinitely, you are entitled to continue receiving weekly payments beyond 130 weeks. However, you must not only meet this criterion but also be assessed with a whole person impairment rating of 21% or more.

As a result, even if you lack work capacity indefinitely, your weekly payments may be terminated by the insurer if you have not been assessed with a 21% or greater whole person impairment rating.

Conversely, if you have been assessed with a 21% or greater whole person impairment rating but have the capacity for some form of employment, the insurer can also terminate your entitlement to weekly payments.

If you don’t have a current work capacity that is expected to continue indefinitely and you have been assessed with a whole person impairment rating of 21% or more, you will continue to receive 80% of your PIAWE.

Alternatively, If you have some work capacity and are working at least 15 hours per week, earning more than $228 per week (indexed annually), you may be entitled to ‘top-up’ payments. To qualify, you need medical confirmation that you are working to your full capacity and cannot increase your hours, and you must also have a whole person impairment rating of 21% or greater.

In certain cases, your employer may also be obligated to provide additional payments, known as “make-up pay,” to supplement your WorkCover payments. This is typically outlined in the relevant awards and may apply during the initial 26 weeks. It’s important to note that this responsibility falls on your employer, not the WorkCover insurer.

In certain circumstances, you may be entitled to an impairment benefit. An impairment benefit is a once-off lump sum payment to injured workers who have a permanent injury resulting from a work-related injury or illness. An impairment benefit also does not require you to establish that your employer is at fault caused your injuries for you to be entitled to it.

An impairment benefit is only paid if:

• your condition has stabilised, and
• you are assessed as having a 10% whole person impairment (30% in the case of psychological impairment), or
• you have suffered a total loss of effective use of a body part, including an amputation.

If you have injured your spine, feet, legs, arms or hands after December 3 2003, you are assessed as having a 5% whole person impairment or more.

Accepting an impairment benefit does not affect your other entitlements.

Common law damages are a lump-sum payment of money intended to compensate you for your loss following an injury caused by the negligence of another person or entity.

There are two elements necessary for an injured person to recover common law damages:

The injury must be considered a “serious injury”

The law defines a ‘serious injury’ and is refined by the Court’s relevant cases. Generally, the process of establishing a serious injury starts with an assessment of your permanent impairment. If your impairment is 30% or more, your injury will automatically be considered a ‘serious injury’. An impairment assessment of 30% is an extremely high threshold, and most workers do not satisfy this requirement. If your permanent impairment is less than 30%, you will need to apply to the WorkCover insurer for a serious injury certificate to pursue common law damages. Most serious injury applications are made on the below-listed definitions, often described as the ‘narrative test’. The requirements are:

• permanent serious impairment or loss of a body function; or
• permanent serious disfigurement; or
• permanent severe mental or permanent severe behavioural disturbance or disorder; or
• loss of a foetus.

The injury was due to the employer’s negligence

Your injury needs to be the result of, or at least in part, due to, the fault or negligence of your employer or another party. If your employer did not consider your work processes appropriately or if your injury was foreseeable and could have been avoided somehow, you may satisfy negligence and be entitled to common law damages. Barbante Personal Injury Lawyers can give detailed advice in determining negligence in your claim.

Common law damages have two components:

Pain and Suffering: These are general damages paid to compensate for the suffering and loss of enjoyment of life. If you have a permanent serious injury that is the result of negligence on your employer or some other person that occurred in the course of your employment, you could be entitled to pain and suffering damages. You can claim general damages for pain and suffering, even if you are still working.

Loss of Wages: These are damages paid for the past and future loss of wages if you have a serious injury and have suffered a permanent 40% loss of earning capacity with your pre-injury earning capacity.

A Certificate of Capacity is an official document that describes your injury, illness, capacity to work, and any limitations you have performing your regular work tasks.

Once your claim is accepted and if you are unable to do your normal working job after 14 days post-injury, you must keep getting certificates every 28 days from your doctor to show you cannot work or that you have restrictions on your ability to work.

Certificates must be given to your employer, who passes them on to the Insurer. The Insurer then pays the compensation to your employer, who pays you. Your employer takes PAYG tax out of this amount.

If your injury occurred interstate and your employer’s principal place of business is in Victoria, you are entitled to make a WorkCover claim. This will entitle you to weekly payments, medical and like expenses and an impairment benefit. However, common law damages for pain and suffering and loss of earnings may be ruled by the state where the injury occurred.

A decision made by a WorkCover insurer may be referred to the Workplace Injury Commission (WIC).  The WIC is a conciliation service that facilitates disputes involving all parties, including Workers, Employers, VWA Agents, or Self-Insurers. The conciliator helps you find a way to resolve the dispute but has only limited powers to make a binding decision.

Disputes that often go to the WIC include:

• Rejection of a WorkCover claim
• Termination of weekly payments
• Failure by the Insurer to calculate pre-injury average weekly earnings correctly
• Partial acceptance of liability (e.g. injuries claimed are back and shoulder, but only liability for the shoulder is accepted);
• Failure for a WorkCover Insurer to make a decision within 28 days of receiving a request.
• Rejection of medical and like expenses

An overview of the WIC process:

• You have 60 days from receiving the decision you are disputing to complete a WIC request form. Note: The WIC may accept an application for conciliation if it is provided after 60 days. Reasons must be provided for the late application.
• The WIC request form is sent with supporting documentation, including medical reports and a written summary of why you request Conciliation. We will do this for you.
• A ‘Request for Medical Report Form’ will be supplied once the request for Conciliation has been lodged. This form gives your treating health practitioner permission to provide a medical report to the WIC. Your WorkCover Insurer will pay the reasonable cost of the medical reports.
• A conciliation date will be set.

Once the Conciliation has occurred, there will be six potential outcomes:

• The Insurer or Self Insurer reverses or withdraws their decision
• The Insurer or Self Insurer makes you an offer to settle the dispute
• The dispute is referred to a Medical Panel. A Medical Panel comprises a number of doctors who will read the documentation, examine you, and decide on the medical question, which is then binding on the parties and the Court.
• The dispute is referred to arbitration.
• The dispute is referred to either the Magistrates’ Court or County Court.
• The Conciliation Officer makes a direction requesting that the Insurer or Self Insurer reverses their decision as it has no reasonable basis.

Barbante Personal Injury lawyers have extensive experience concerning disputes with the WorkCover Insurer. We will guide you through the process and ensure you maximise all your entitlements.

You are also entitled to claim the death of a family member. You might be entitled to a dependency claim if you depended on a family member who died because of an injury.

Your entitlements include the following:

• A lump sum payment for dependants
• A weekly pension for dependent partners and children:
• A partner for the first 13 weeks following the worker’s death, the pension is calculated at 95% of the worker’s pre-injury pay. From 14 weeks until three years following the worker’s death, the pension is calculated at 50% of the worker’s pre-injury pay.
• Children dependent on a deceased worker may also receive a weekly pension of 5% of a worker’s pre-injury pay. The entitlement commences from 14 weeks after the worker’s death and continues until the child is 16 years old or ceases to be a full-time student.
• Payment of the reasonable costs of grief counselling services to immediate family members
• Payment of the reasonable costs of burial or cremation
• Payment of the reasonable costs for travel and accommodation for immediate family members to attend the funeral or cremation service
• Reimbursement of expenses for non-dependent family members

A claim must usually be brought within six years of the worker’s death. However, an extension of time can be obtained in some instances. It should be noted that common law damages in this circumstance are uncommon as damages are offset against received death benefits. Given the complex nature of these claims, it is important to get legal advice as soon as possible. Barbante Personal Injury lawyers have extensive experience in death claims and can assist you through these challenging times.

Once you become aware of your injury, you should report the injury to your employer and lodge a Workers Injury Claim Form within 30 days. Once you have completed your claim form, you must give it to your employer, who will forward it to their Insurer. Your claim will be assessed within 28 days.

A common law claim for pain and suffering and loss of income must be lodged within six years of your injury date. It is possible to be granted an extension of time by a court or have WorkSafe waive this time limit in some instances. It is essential to contact us immediately if six years is approaching.

You should bring all relevant documentation relating to your WorkCover claim. This includes completed claim forms, medical reports, letters from both your Insurer and employer and any other documents that may be relevant. This documentation is essential to ensuring your claim’s best outcome, as all the evidence collected will strengthen your claim.

You may also be entitled to other benefits such as:

• Total and Permanent Disablement or Permanent Incapacity claims within your Superannuation Scheme
• Income Protection

These schemes depend on your policy as they all operate with different and specific requirements that need to be satisfied.