| WorkCover and Work Injury Glossary of Terms |
Adviceline Lawyers – Workcover Work Injury SpecialistsAccident Compensation Act 1985 (Vic) The legislation that provides compensation for work injuries in Victoria, and set out the legally processes for statutory claims. Accident Compensation Conciliation Service (ACCS) The body set up under the Accident Compensation Act to assist parties to resolve disputes about claims without going to Court. The ACCS organises conciliation conferences. AMA Guides The American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 4th Edition. These provide guidelines for IMEs (Independent Medical Examiners) to assess the level of impairment (loss of body function) of an injured person. A claim issued in the Courts to claim compensation for an injury caused by negligence. Although these claims are made in the Court system, most claims are settled before they get to Court. Common law claims can be made for work injuries and diseases, injuries in public places (public liability), injuries due to faulty products, or negligent medical treatment. A common law claim is different from a WorkCover, Transport Accident Commission (TAC) or ComCare claim, which do not involve negligence. A conference to try to resolve a WorkCover dispute between the worker and the insurer, without going to Court. A neutral Conciliator (or Conciliation Officer) assists the parties to discuss the options. The injured person can ask another person to assist, or in exceptional circumstances can sometimes bring their lawyer. There is no fee to ask for or attend conciliation, and it is faster than a Court hearing. If the parties cannot agree, the worker still has a right to go to Court. date of discoverability The date on which you either became aware, or could have become aware, of a right to make a common law claim. (This applies only to claims under the Wrongs Act for medical negligence or public liability, but not WorkCover or Transport Accident (TAC) claims.) For example, you might have suffered an injury in 2006, but you may not have known that it was caused by the fault of another until 2010. If it was reasonable that you were not aware of the fault or significance of your injury until a later time, your date of discoverability will be the date you became aware. This date is important because there are time limits. deemed serious injury certificate See also serious injury certificate. The serious injury certificate is “deemed” to be granted (automatically granted) to the injured worker if the defendant fails to respond to an application within 120 days. It can also be “deemed” if the injured worker suffers 30% or more impairment in WorkCover or Transport Accident cases. Also known as pain and suffering damages. A dollar amount of compensation awarded to an injured person in a common law claim, to compensate for the pain and suffering and loss of enjoyment of life due to the work injury. This is separate to special damages, which compensate for financial loss and medical and special care costs. A jury or judge can determine the amount or it can be negotiated out of court. IME (Independent Medical Examiner) This is a doctor who will examine an injured person to determine the person’s level of impairment. Loss of function of the parts or systems of the body due to the work injury. Impairment is measured by IMEs (Independent Medical Examiners), or the Medical Panel. impairment benefits Monetary compensation available for transport accident and work-related injuries. This is a lump sum payment, and is a separate entitlement from medical expenses, and weekly payments for lost earnings. Hearing loss due to exposure to loud noise in a work environment. This used to be known as “boilermaker’s deafness” because metal-workers were the first known group to have hearing damage from noise exposure at work. Industrial deafness can be diagnosed specifically – compared to other types of hearing loss – because hearing is damaged differently at different frequencies. Industrial deafness is an injury for which compensation is available under the Accident Compensation Act, even if the workplace provided hearing protection. informed consent In medical treatment, informed consent means that a patient is advised of the recognised risks of a medical procedure and, understanding those risks, freely chooses to proceed with the treatment. Hearing loss, as a work injury, is measured as a percentage. An Ear, Nose & Throat specialist or an Audiologist can conduct hearing tests to measure hearing loss, and also to diagnose the likely cause. Industrial deafness is one type of hearing loss, and can be compensated under the WorkCover system. loss of earnings benefits Payments made by the TAC while a person is unable to work due to their transport accident injuries. These payments are made up to 18 months after the accident and are calculated at 80% of the person’s weekly earnings at the time of the accident. The maximum payable per week is $1035. loss of earning capacity benefits If after 18 months from the accident, a person remains unfit for work due to their transport accident injuries, the TAC can provide loss of earning capacity benefit payments. These are based on 80% of the person’s net (after tax) pre-accident wage. The maximum weekly payment is $875. Payments will stop at 3 years after the accident, unless the person has their whole person impairment determined at or over 50%. medical expenses (medical and like expenses) An entitlement of a person injured at work to have medical treatment and other related expenses paid for by the TAC, WorkCover or the employer. This can include a broad range of treatments, therapies and equipment, but only what is judged to be “reasonable” for the injury. A Medical Panel can assess claimants in WorkCover claims or common law claims, when there is a medical issue to be resolved. A Medical Panel is a number of specialist medical practitioners who are accredited to examine patients for compensation claims. Their decisions are usually binding on the injured person and all other parties, because they are specialists in the area or areas of medicine relevant to the claim. A Medical Panel decision can only be appealed if there is an error in law in the Panel’s reasons. Negligence is the failure to take reasonable care. In injury law, negligence arises if a person, company or government authority fails to take reasonable steps for the safety of another person. If the person suffers harm because of that failure, he or she may have a right to compensation. A claim for compensation for negligence requires the plaintiff (claimant) to prove: 1 That the defendant owed a duty of care to the plaintiff; 2 That the defendant failed to take reasonable steps to fulfil that duty (this is the “negligence”); 3 That failing to take those steps caused harm to the plaintiff; and 4 That the defendant should have foreseen the risk that the plaintiff would suffer harm. pain and suffering damages Also known as general damages. Monetary compensation for the pain and loss of function and enjoyment that an injury has caused. This is a separate amount of compensation from medical and related expenses, or lost earnings. Pain and suffering damages can be awarded by a Court, or an amount can be negotiated and settled out of Court. precedent A precedent is a decision made by a Court which other Courts follow in similar cases in lower Courts. Injury law in Victoria is governed by both legislation and precedents. Precedents make our “common law” system more predictable. pre-injury average weekly earnings (PIAWE) The average amount an injured worker earned per week – including overtime – before an injury affected his or her ability to work. If a worker receives weekly payments while he or she cannot return to work, the amount is calculated using the PIAWE. For the first 26 weeks of weekly payments, overtime and penalty rates are included in the calculation of PIAWE. The legal duty of owners and occupiers of public spaces to take care for the safety of members of the public. A person injured in a public place due to the owner’s or occupier’s failure to take reasonable safety measures may have grounds for a common law claim for compensation. Confirmation that the injury claimed for is “serious” and permanent, and has been caused or contributed to by the Defendant. A serious injury certificate can be agreed to by the defendant, or granted by the Court based on evidence presented. Once this is granted, the plaintiff has proved the injury and the other issues in the common law claim or statutory claim remain. If the Court refuses to grant a serious injury certificate, a common law claim for work injuries or transport accident injuries cannot proceed. In a common law claim, special damages are the dollar amount calculated to compensate the injured person for medical expenses, financial loss and special care costs. These are separate to general damages. For work-related injuries, compensation is available under the “statute” – the Accident Compensation Act. These claims are made against the WorkCover Authority, or sometimes against the employer itself. A statutory claim does not require the injured person to prove that the employer is at fault. The other way to claim compensation is by making a common law claim. For transport accident injuries, compensation is available under the “statute” – the Transport Accident Act. These claims are made directly against the Transport Accident Commission (TAC). A statutory claim does not require the injured person to prove that any driver or other party is at fault. The other way to claim compensation is by making a common law claim. A serious injury certificate is required to make a common law claim. Transport Accident Act 1986 (Vic) The Transport Accident Act is legislation that governs the Transport Accident Commission (TAC) and provides statutory benefits for people injured in transport accidents. These statutory benefits include payment for hospital and rehabilitation expenses, medical expenses, loss of earnings benefit, loss of earning capacity benefits and impairment benefits. If a person wishes to sue for their pain and suffering and loss of earnings, they need to obtain a serious injury certificate and pursue a common law claim. For common law claims, an injured person needs to issue their claim within the time limit, or “limitations period”. Extensions of time are sometimes allowed by the Courts, but generally a claim must be made within the relevant time. This is why it is important to get prompt legal advice if you think you may have a claim. Compensation for lost income while a person is unable to work due to his or her work-related injury. The amount of the weekly payment is a percentage of the worker’s PIAWE, capped at a maximum dollar amount. Whole Person Impairment (WPI) The WPI is a measure of the severity of an injury, for the purpose of calculating compensation. The WPI is a percentage calculated by medical specialists who are accredited to apply the authorised guidelines. If you want to be represented by an expert Melbourne lawyer, experienced in Workcover work injury and TAC claims, please contact us on: t: (03) 9321 9988 or 1300 MY INJURY e: This e-mail address is being protected from spambots. You need JavaScript enabled to view it |