WorkCover FAQ – Frequently Asked Questions
Adviceline Injury Lawyers – WorkCover Lawyers
Who is covered under WorkCover?
WorkCover is a workers’ compensation scheme established by law to compensate Victorian workers who are injured at work or who suffer from a work-related illness. Workers are covered by the scheme regardless of who was at fault.
In certain circumstances, independent contractors may be eligible for WorkCover compensation under the scheme. For example, a carpenter or truck driver with regular hours and one employer over a period of time may be considered a worker even if tax is not deducted from their pay. Clothing outworkers and local councillors are also now considered workers under workers’ compensation law. Contact Adviceline Injury Lawyers on 9321 9988 for free legal advice if you are unsure as to whether you will be considered a worker and entitled benefits.
I have been injured at work – what should I do?
If you have been injured at work you need to notify your employer within 30 days of you becoming aware you have sustained a work injury. A good way to formally notify your employer is to fill out the Register of Injuries which must be kept at each workplace.
You should seek any medical treatment necessary. It is helpful to tell your doctor or health provider the circumstances of your work-related injury from the first consultation.
If you incur medical expenses or need to take time off work, you will need to complete a WorkCover claim form. You can obtain a WorkCover claim form from the post office, or your employer may also be able to provide you with a copy. Otherwise, please feel free to contact Adviceline Injury Lawyers on 9321 9988 and we will send you a copy.
Please note that if your work injury or condition came on over a period of time, you should note this instead of a date in the section that asks when the injury/condition occurred and when you first noticed it. You should contact Adviceline Injury Lawyers if you have any other queries regarding the WorkCover claim form.
The claim form must be given to your employer. If you are claiming for time off work, you also need to have a WorkCover Medical Certificate from your treating GP. An ordinary medical certificate will not be accepted. Your employer has 10 days from when it receives your claim to 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. 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 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 28 days, 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.
If you are concerned that your injury or condition could cause you ongoing problems, it may be worthwhile to seek legal advice while the circumstances of the injury are still fresh in your mind. For free initial legal advice over the telephone, call Adviceline Injury Lawyers on 9321 9988 to speak to a solicitor.
How long do I have to make a WorkCover claim?
There is no strict time limit to bring a no-fault WorkCover or impairment benefit claim, but the sooner you lodge a WorkCover claim the better. A Notice of Injury should be given to your employer within 30 days of you becoming aware that you have sustained an injury.
You only have 6 years from your date of injury to bring a common law claim against your employer. This date may be extended in some circumstances, such as if you have only recently become aware of the seriousness of your injury. If you are in any doubt and think that you might be out of time to lodge a claim, please contact Adviceline Injury Lawyers as soon as possible on 9321 9988.
What will it cost me to bring a claim?
At Adviceline Injury Lawyers we will meet with you for free legal advice. You can phone or 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 Fee arrangement in workers compensation WorkCover cases. That means that where we recommend you proceed with a claim and you lose, you don't have to pay for our services. For some WorkCover claims, you may have to pay some disbursements. These are the bills we have paid on your file, but we keep these as low as possible and discuss all risks with you before taking your instructions to proceed.
We are committed to maximising the compensation to be received by injured workers. We only charge for the work we do. In addition, we guarantee that where you are successful in recovering compensation, the shortfall in costs which we charge you will not exceed 20% of the WorkCover compensation offered in a lump sum claim and 25% of the settled sum in all other personal injury claims. Our focus is on ensuring you get the most you can out of your WorkCover claim.
What type of work injury claims could I make?
If you are injured at work, you may be entitled to three different types of benefits:
(a) Weekly payments and reasonable medical and like expenses
(b) Impairment Benefit for permanent injury
(c) Common Law claim - this can include compensation for pain and suffering as well as loss of earnings.
WorkCover Statutory Benefits
What am I entitled to under WorkCover?
If you have an accepted WorkCover claim, you are entitled to claim related medical and like expenses.
In addition, if your work-related injury or illness has left you fully or partially incapacitated for work, you may be entitled to claim weekly payments.
What medical expenses and like expenses can I claim as part of WorkCover?
If you have been injured at work you are entitled to payment of reasonable medical and like expenses. This includes 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 includes 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 (e.g. to see your GP, surgeon, physiotherapist) and also medical examinations by WorkCover doctors.
Am I entitled to weekly payments?
For the first 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 9321 9988 to find out how this is calculated.
After 13 weeks and up to 130 weeks, payments continue at 80% if you have no capacity for work.
If you are able to do some work, you are entitled to 80% 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 Injury Line Lawyers on 9321 9988 to find out how to apply.
Can I make a WorkCover claim for stress?
You can make a WorkCover claim for stress or a mental health issue that requires you to obtain medical treatment or take time off work, if your condition is established to be related to your work.
An exception to this is that you cannot make a claim if your work-related psychiatric injury is predominantly caused by a reasonable ‘management action’ taken in a reasonable manner. It is important that if your condition is caused by factors at work other than management actions, that you state this clearly on your WorkCover claim form. Contact Adviceline Injury Lawyers for free legal advice and any help you may need in filling out your claim form on 9321 9988.
What is an impairment benefit?
You may be entitled to a lump sum payment if you are left with a permanent impairment because of your work injury. This is a no fault benefit, so you do not need to establish that your employer has been negligent. The benefit 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 an impairment 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. You do not need to pay tax on this benefit.
How much will I receive for an impairment benefit?
Impairment benefit compensation is determined in accordance with a formula set out by law, dependent of the level of impairment you are assessed as having and the date of your injury. Once the level of impairment is accepted, you cannot negotiate on the amount of compensation that you are entitled to.
Psychiatric injuries are now paid at the same level as physical injuries. However, to receive any compensation for a psychiatric injury, you need to be assessed as having at least a 30% whole person impairment. This compares with 5% or 10% for certain physical injuries.
The amount that a person is entitled to increases by approximately $2,000 - $2,500 for each additional 1% impairment up to 30%.
When can I bring an impairment benefit claim?
You may only bring a lump sum claim once your injury has stabilised (that is, not getting any better or worse). At a minimum, you need to wait at least 12 months since your date of injury.
How long do I have to make an impairment benefit claim?
There is no time limit to make an impairment benefit claim. However, if you think that you may be entitled to lump sum compensation, you should seek legal advice as soon as possible by calling Adviceline Injury Lawyers on 9321 9988.
You must bear in mind that if you have any common law rights, you only have 6 years from the date of injury to make a claim.
Common Law Claims
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 another party with no connection to your employer.
The WorkCover statutory benefits system is a ‘no fault system’. In contrast, 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. In a common law claim, you may be entitled to claim for both loss of earnings as well as pain and suffering damages.
When can I bring a common law claim
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 that you have suffered a serious injury.
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 assessment of 30% or greater in a lump sum application or qualifying under one of the definitions of serious injury set out by law. 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 these definitions involves an assessment of the injury and its effects to see if these consequences of the injury 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.
How long does a common law claim take?
It is very difficult to estimate how long a common law claim might take. The claim may only be brought after the injury is stabilised, and the medical evidence is gathered.
From this time, the duration varies dependent on factors including whether the Victorian WorkCover Authority rejects or accepts the serious injury application, the complexity of the case, and whether the case settles prior to litigation. As a rough guide, from the date of the serious injury application (the first step) common law claims can take between 6 - 24 months.
How long do I have to make a common law claim?
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. However, 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 still obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.
In some limited circumstances, you can make a claim more than 6 years after your date of injury, for example if you only recently became aware of the seriousness of your injury. If this is the case, it is important that you seek legal advice as soon as possible. You can call Adviceline Injury Lawyers on 9321 9988 for free legal advice over the telephone.
Would I have to go to court?
In a common law claim, there are two stages in the process that could involve going to court – the serious injury application, and the trial regarding negligence.
Any application must be brought bearing in mind that you may have to go to court to establish your claim. As a matter of practice, the majority of cases we act in reach negotiated settlements, particularly after a serious injury certificate is deemed or granted. Adviceline Injury Lawyers will advise you fully on your case and any risks involved prior to any litigation being commenced.
What compensation could I receive?
If you are granted a serious injury certificate, you can bring a claim for pain and suffering damages. The amount of pain and suffering damages you can claim depends on your circumstances and the impact of your injury. If the matter goes to court, it would likely ultimately be determined by a jury. As a guide, the maximum amount of pain and suffering damages allowed by law is approximately $500,000. However, this is only for the very worst of injuries and most injured workers receive far less than this. The current Victorian average is approximately $80,000. The amount varies according to the severity of the injury and the effect that it has had on your life.
If you have already received a lump sum payment, this is deducted from any pain and suffering damages that you receive.
If you are able to bring a claim for loss of earnings, you can claim for your past and future economic loss. The amount of damages that this includes depends entirely on the amount you can prove that you were earning prior to your injury and your earning capacity into the future. It can therefore only be determined on a case-by-case basis.
If you receive damages for economic loss, you are required to pay back any weekly payments of compensation that you have already received under WorkCover in relation to the claimed injury. You would also not be allowed to receive any further WorkCover weekly payments in relation to the claimed injury into the future. Your medical and like expenses would continue to be paid regardless.
