WorkCover Compensation

Acceptance/Rejection of WorkCover Claims

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If you are injured at work, you are entitled to claim WorkCover compensation. Some injuries, such as strokes and heart attacks also require that the employment was a material contributing factor to the injury occurring.

A WorkCover claim form must be completed and lodged as soon as possible after an injury is sustained. The WorkCover insurer has 28 days from receipt of the WorkCover claim to accept or reject the claim.

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If the WorkCover claim is rejected, you can challenge the WorkCover insurer’s decision by lodging a Request for Conciliation with the Workplace Injury Commission (previously called the Accident Compensation Conciliation Service).

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We can assist you with the completion and lodgement of your WorkCover claim and lodge the Request for Conciliation on your behalf.

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If the dispute is unable to be resolved, the dispute can be sent to the Medical Panels if the dispute relates to a “medical question”. Otherwise, the dispute may require proceedings to be issued in the Magistrates’ Court of Victoria.

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Types of Compensation Available

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Once your WorkCover claim has been accepted, there are a number of types of compensation available to you:

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Weekly Payments of Compensation:

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Are calculated on the basis of the income you have received in the 12 months prior to the date of injury. Your pre-injury average weekly earnings (PIAWE) are calculated, and you will be paid according to the following periods:

• 1st 13 weeks are paid at 95% of your PIAWE, including any overtime or shift allowances.

• 13 to 52 weeks are paid at 80% of your PIAWE, including any overtime or shift allowances

• 52 to 130 weeks (2 years, 6 months) of your PIAWE, not including any overtime or shift allowances.

Weekly payments of compensation can only continue after 130 weeks if you have “no current work capacity” which is likely to continue “indefinitely”.

The WorkCover insurer must also make superannuation payments to your super fund after you have been in receipt of weekly payments for 52 weeks.

The weekly payments are indexed annually on the anniversary of the injury, in line with inflation.

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Medical and Like Expenses:

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Include GP and specialist appointments, medication costs, operation costs and travel costs to attend for treatment.

Less common expenses include lawn mowing and gardening services, home cleaning services, the provision of firewood and vehicle modifications.

The WorkCover insurer will determine whether the expenses are reasonable and relate to the injury sustained. Disputes regarding weekly payments and/or medical and like expenses proceed to the Workplace Injury Commission and potentially to the Medical Panels or the Magistrates’ Court of Victoria.

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Impairment Benefit Claims:

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 Are claims for permanent impairment arising from the accepted WorkCover injury/injuries. There is a waiting period of generally 12 months from the date of injury before an impairment benefit claim can be commenced. There are also different thresholds for different types of injuries:

• Musclo-skeletal injuries-backs, necks, shoulders, knees, ankles etc, require a 5% whole person impairment before impairment compensation is payable.

• Other physical injuries-hernias, hearing loss, heart attacks and strokes require a 10% whole person impairment before compensation is payable,

• Psychological injuries require a 30% whole person impairment before impairment compensation is available.

Medical material is obtained from your treating doctors and a claim form completed. The insurer will determine whether they are liable for the injury and arrange a medico-legal impairment assessment. The amount of compensation is determined by the level of impairment as found by the medico-legal examiner. If you or we believe the level of impairment has been underestimated, the dispute is referred to the Medical Panels for final determination.

The amount of impairment benefit compensation payable is indexed annually.

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The amount of compensation available for a 5% whole person impairment in the Financial Year 2022/23 is $13,870.

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Serious Injury Applications/Common Law Claims:

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Common Law claims are claims brought against your employer and any other entity responsible for your injury occurring.

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You must show that your injuries arose as a result of the negligence of your employer or the other entity. This generally means proving a breach of the duty of care owed to you by your employer or other entity. This can be a failure to correct a reasonably foreseeable risk of harm in the workplace, a breach of manual handling regulations or other failure.

To commence a Common Law Claim, you must first lodge a Serious Injury Application.

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The most common definitions of “Serious Injury” are:

• Permanent serious impairment or loss of a body function.

• Permanent severe mental or permanent severe behavioural disturbance or disorder.

The Serious Injury Application can be for pain and suffering or pain and suffering and economic loss.

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Pain and suffering relates to the consequences of the injury to you and your lifestyle. There is a threshold to determine whether the consequences are “serious” when viewed in the context of other claims. This determination is the most common area of dispute and most likely to result in proceedings being issued in the County Court of Victoria.

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Economic loss damages can only be claimed when any residual work capacity you have will not enable you to earn more than 60% of what you earned before the injury. Your previous 3 years of tax returns will be used to determine your previous earning capacity.

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Documents are prepared and the Serious Injury Application is lodged with WorkSafe. Lawyers for the employer/defendant have 120 days to accept or reject the application.

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If the Serious Injury Application is accepted, a conference is held to try to settle the claim.

If the application is rejected, proceedings are issued in the County Court of Victoria to have the issue of whether you have suffered a “serious injury” determined by a Judge. If the Serious Injury Application is granted by the Court, a conference is then held to try to settle the claim.

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If the claim does not settle at conference, proceedings are issued for a Trial to commence in the County or Supreme Court of Victoria, generally before a Judge and Jury.

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As you can see, WorkCover claims can potentially be as simple as obtaining a short period of weekly payments of compensation and some medical expenses while you recover from your injury, while others can result in significant litigation to obtain damages for the injuries sustained.

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At Wimmera & South West Injury Lawyers, we have the knowledge and expertise to assist you no matter the extent of your claim. Our “No win, no fee or expenses” policy gives you the peace of mind to seek advice and assistance knowing you won’t receive a bill from us unless we get you compensation for your injury.