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If you have suffered an injury at work, you need an expert lawyer who knows the best way to represent you in a claim. Advice Line Lawyers, a division of Holding Redlich have over 30 years of experience in representing injured workers and we have lawyers in our WorkCover department who are Accredited Specialists in personal injury law. This is a qualification granted by the Law Institute of Victoria.
We pride ourselves on being able to provide clear and practical advice. In most cases, you are not charged for our time unless and until you succeed in your claim. A first appointment is free and you are not obliged to instruct us after that.
If you want to find out more about your WorkCover (or WorkSafe) rights before coming in to see us, please click on the following links:
If you want to be represented by an expert Melbourne lawyer, experienced in WorkCover claims, please contact us on:
t: advice line on (03) 9321 9988
e:
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How does the claim process work?
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You meet with a lawyer at Advice Line Lawyers. We will give you some preliminary advice on your rights. We need to wait until your injury is stabilised before we can proceed with a claim so we may need to review with you over time until your injury is stable. There is no charge for this if your case does not proceed.
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Step 2 |
Once your injury is stabilised we will write to your treating doctors and other health care providers to obtain medical reports and records.
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Step 3 |
We will next assist you in lodging a claim for impairment benefits from the WorkCover insurer. You will then be paid compensation if you meet the required level of impairment.
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Step 4 |
We will then assist you in lodging a serious injury application with the WorkCover insurer. This involves preparing detailed documents, including an affidavit from you explaining how the injury has impacted on your life.
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Step 5 |
The insurer determines whether it considers you have a serious injury. If it denies our request then we will advise you as to whether you should proceed with a court application. Such cases are issued in the County Court where a judge is asked to consider whether you have a serious injury.
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Step 6 |
Once you have been granted a serious injury certificate we enter into settlement negotiations with the WorkCover insurer. If your case does not settle, court proceedings must be issued alleging negligence against your employer and seeking damages from the Court. |
Where do I get a claim form?
Workcover claim forms are available from the post office. Your employer may also be able to provide you with a copy. Otherwise, please feel free to contact Advice Line Lawyers and we will send you a copy.
Please note that if your injury or condition came on over a period of time, you should write this instead of a date in the questions that ask when the injury/condition occurred and when you first noticed it.
You should contact our office if you have any other queries regarding the WorkCover claim form.
The claim form must then be served on your employer. If you are claiming for time off work then you need to also have a WorkCover Medical Certificate. An ordinary medical certificate is not good enough. The employer has 10 days from when it receives a claim to either accept it or reject it and then must forward the claim to its authorised insurer/claims agent. It is possible to lodge a copy of a claim with the authorised insurer/claims agent and this is recommended where there is some doubt as to whether the claim form will be passed on. Penalties can be imposed on employers when claims are not forwarded to the authorised insurer or claims agent.
Once the authorised insurer/claims agent receives a claim it has 28 days in which to accept or reject the claim. If it rejects the claim it should provide written notice of the rejection. If it doesn’t reject the claim within the 28 days allowed, then the claim is treated as accepted. Normally, before deciding whether to accept or reject the claim the authorised insurer or claims agent will arrange for you to be examined by one of their doctors.
What medical expenses can I claim?
If you have been injured at work you are entitled to payment of reasonable medical and like expenses. This includes the obvious costs such as ambulance and hospital expenses, doctors and other medical attendances, medications and aides such as crutches. You are also entitled to personal and household expenses and rehabilitation costs.
Many people may not be aware that personal and household services can be claimed. These include counselling, modification to a home or car, household help, gardening, transportation and rehabilitation services. Rehabilitation services broadly covers services designed to either return you to your pre-injury job, or to re-educate or re-train you, or otherwise assist in obtaining other employment.
You are also entitled to claim for travel expenses to appointments for medical treatment (eg to see GP, surgeon, physiotherapist) and also medical examination by WorkCover doctors. We suggest you keep a record of:
- when and who you saw
- purpose of appointment
- where appointment was
- distance travelled
You should send these details on a regular basis and seek reimbursement as you are entitled to 28 cents per kilometre travelled.
What weekly payments am I entitled to?
Your employer has to pay the first 10 days of your time off. Then, for the next 13 weeks if you can’t work, you are entitled to 95% of your pre-injury average weekly earnings (subject to a maximum). Please contact our office for advice on how this is calculated.
After 13 weeks and up to 130 weeks payments continue at 75% if you have no capacity for work.
If you are able to do some work, you are entitled to 75% of the difference between what you are earning and your pre-injury average weekly earnings.
Some workers can have their weekly payments continue where they have no current capacity for work and that situation is likely to continue indefinitely.
If you are working at least 15 hours per week and are likely to continue indefinitely to be incapable of undertaking further or additional employment or work, you may be entitled to further compensation beyond 130 weeks. Please contact Advice Line Lawyers to find out how to apply.
Can I claim pain and suffering compensation?
Some injured workers are entitled to pain and suffering compensation, but this will depend on how well you recover. The law only allows those left with permanent serious problems to receive pain and suffering compensation.
What is a permanent impairment benefit?
You may be entitled to a lump sum payment of compensation if you are left with a permanent impairment because of your injury. This is a benefit that is calculated in accordance with a formula depending on the level of impairment you are assessed as having. An independent doctor would need to examine you in accordance with a guide published by the American Medical Association. There are minimum levels of impairment that you must have before you are entitled to a benefit, depending on when you were injured and what injury you suffer. This benefit does not impact on your entitlement to weekly payments, medical and like expenses, or a common law claim.
What is a common law claim?
Some work related injuries are caused due to someone’s fault or negligence. This can be because of your employer’s failure to provide a safe workplace, although it can include the acts of a third party with no connection to your employer. A claim seeking compensation for an injury where negligence is involved is called a common law claim. The compensation sought in a common law claim is called damages.
A common law claim is separate and in addition to your entitlements under the WorkCover system.
Damages
There are 2 main categories of damages sought in a common law claim:
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Pain and suffering, or general damages – this is compensation for the pain and suffering you have endured and will continue to endure, and your loss of enjoyment of life;
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Past loss of earnings and future loss of earning capacity – compensation for wages lost because you have been unable to work, and/or are unable to work into the future.
Even where your injury was caused by your employer or another person’s fault, you do not automatically have the right to sue for damages. You must first establish:
What is a Serious Injury?
You must have a serious injury to be able to bring a common law claim. This means either receiving an impairment of 30% or greater in a lump sum application under your WorkCover claim (this is what we refer to as a Deemed Serious Injury), or qualifying under one of the definitions of serious injury in the Accident Compensation Act. These are:
- Permanent serious impairment or loss of a body function
- Permanent serious disfigurement
- Permanent severe mental or permanent severe behavioural disturbance or disorder
- Loss of a foetus
- Whether you meet any of the above definitions involves an assessment of the injury itself and the consequences of the injury to see if these consequences are ‘more than significant’ when compared with other cases
The Victorian Workcover Authority (or WorkSafe) through its lawyers, may issue a certificate confirming you have suffered a serious injury. If your application is denied, then a case can be issued in the County Court of Victoria seeking a certificate, where a judge decides whether you meet the serious injury criteria.
Does the Serious Injury Certificate entitle me to sue for both types of damages?
No, a Certificate can either be granted to allow you to sue for both pain and suffering and loss of earnings, or just pain and suffering. It is very difficult to get the right to sue for loss of earnings. Unless you have a Deemed Serious Injury, you can only claim for lost earnings if you can prove that your present and future earnings have dropped by at least 40%, and that this drop will be permanent. A detailed analysis of your earnings and the medical reports would need to be done to see whether you establish this loss. It is a particularly onerous requirement because the analysis of your future earnings does not look at whether you are actually working or can get a job, but whether your medical condition allows you to work, and if so, how much money you could theoretically earn.
What happens when I get the Certificate?
If a Certificate is granted, you then have the right to sue for damages. There are steps that must be completed before you can issue your court case, such as a settlement conference and written offers from each party. If your case does not settle during this negotiation stage, a Writ would then be issued in the County Court. This is the case where negligence and damage has to be proven and the outcome is usually determined by a judge and jury of six.
How can I prove it was their fault?
Over the years, Courts have broken down negligence into various elements. Some of these are:
The Defendant must have owed you a duty of care.
- It is important to note that for work injuries, employers have a duty to provide a safe place of work, and therefore it is almost always the case that a duty of care was owed.
The Defendant must have breached their duty of care.
The Defendant’s breach must have caused your injury.
How long have I got to sue?
A common law claim must be commenced within 6 years of the date of injury. Injuries that arise over time such as psychiatric injuries should ideally be commenced within 6 years of the onset of symptoms. You should seek advice well before the 6 years expires, however, as preparing a case takes some time. Even if you don’t think your injury is serious, you should at least obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.
Can I dispute a decision about my entitlements?
If your claim is rejected or if a notice is received, for example, refusing to pay for a medical service and you want to dispute that notice, you must request conciliation. That is, have the matter referred to the Accident Compensation Conciliation Service (Conciliation). You can contact your union or Advice Line Lawyers who can help complete and send the necessary form and if needed arrange to obtain a medical report or reports.
The aim of Conciliation is to try to resolve disputes without the need for court proceedings. All disputes must be referred to the Accident Compensation Conciliation Service as the first step before court proceedings can be taken. In order to arrange for a disputed claim to be dealt with by the Accident Compensation Conciliation Service a Request for Conciliation form needs to be filled out and then sent to the Conciliation Service together with the notice you received. This must be done within 60 days of receiving the notice. It is possible to lodge a request outside that time frame and request an extension of time, however there is no guarantee that the extension of time will be granted by the Conciliation Service.
Conciliation
The Conciliation Service arranges a meeting between the you and the WorkCover insurer (your employer can also be present) with a view to seeing whether the dispute can be resolved. You can be assisted and advised at the conciliation meeting, but as they are informal meetings and no costs are payable, a lawyer can only act for you if the insurer and your employer agree. Two representation agencies, Union Assist and WorkCover Assist can help and advise you at the conciliation level.
At the conciliation the conciliator will typically ask you to explain why he or she believes they are entitled to compensation and then ask the claims agent to justify their opposition. It is then not uncommon for the conciliator to talk to the parties separately with a view to reaching an agreement. Frequently an agreement is reached. In very limited circumstances a conciliator can order that the worker be paid the compensation he or she is seeking even if the claims agent does not agree. However in most situations where agreement cannot be reached the conciliator either declares a genuine dispute or if the dispute is about a medical issue, refers that medical issue to a medical panel.
Medical Panel
If a conciliation officer refers a medical question to a medical panel, the medical panel is required to provide an answer to the medical question within 60 days. The medical panel usually consists of 2 or 3 doctors selected from a register of medical practitioners. The decision of the medical panel is binding. Other than in exceptional circumstances, there is no appeal from a medical panel decision to a court.
The medical panel will examine you then give written answers to the questions they have been asked and also an opinion setting out the reasons why they have answered the questions in the way they have.
Court Proceedings
If the conciliation service cannot resolve the dispute between the parties by discussion and the matter has not been referred to a medical panel to make a decision, then you can to take the matter to court. Most court proceedings are taken in the Magistrates Court. Some cases are taken to the County Court. Even if court proceedings have been commenced, either party has the right to have a medical question referred to a medical panel.
I have hearing loss from work – can I claim?
If you are currently working in noisy condition and suffer a 10% level of hearing loss, you may be entitled to compensation of $16,000.00. This entitlement may be higher if your hearing loss is worse. If you have stopped work and have a 10% hearing loss, the compensation sum may be less depending on when you stopped work. You can still make a claim though. You can also claim for hearing aids if you need them.
In order to claim compensation, you will need to complete a claim form, attend an appointment with a WorkCover appointed specialist and communicate with our office. We’ll take care of the rest.
What will it cost me?
At Advice Line Lawyers we will meet with you for free legal advice. You can come in and discuss your claim with us and we will advise you on your rights and possible entitlements. If you need urgent legal advice, we can arrange for you to meet with a solicitor within 48 hours.
We offer a no-win no-charge arrangement in workers compensation cases (eg. rejection of a claim, termination of weekly payments or medical expenses). This includes the payment by Advice Line Lawyersof all disbursements where we have recommended proceeding. We do not charge for our professional fees and we will not ask you to pay for any outstanding out of pocket expenses we incurred on your behalf, such as court fees, medical reports and witness fees etc if you lose.
We are committed to maximising the compensation to be received by injured workers by agreeing that where you are successful in recovering compensation, the shortfall in costs which we charge you will not exceed 15% of the compensation offered in a lump sum claim and 25% of the settled sum in all other personal injury claims.
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