This article was updated on 24 April 2024.
Injured Victorian workers are eligible for various forms of compensation at different stages of their WorkCover claim. Once a claim is accepted, an injured worker can not only claim payment of medical and like expenses, but also weekly payments and in some cases a lump sum known as an Impairment Benefit. If a worker can then establish fault on the part of their employer and that they have suffered a serious injury under the law, they may also be entitled to compensation by way of Common Law damages.
This compensation payout guide seeks to simplify what injured workers need to know in making their claims for monetary compensation.
Weekly payments
What are weekly compensation payments and how can I make a claim?
Weekly payments are a form of ‘wages’ which an injured worker can claim if they cannot complete their pre-injury duties.
If a WorkCover claim form is submitted with an initial 14-day Certificate of Capacity, it is automatically considered a claim for both weekly payments and medical and like expenses. If a WorkCover claim form is submitted without a Certificate of Capacity, it is considered to be a claim for medical and like expenses only.
If the claim is accepted, the worker must then regularly attend a treating practitioner to obtain 28-day Certificates of Capacity which demonstrate their fitness for pre-injury or alternative work. This legal document must be submitted to the insurer in order to obtain these payments.
When can I claim weekly compensation payments?
Weekly payments can be claimed from the date of the injury up until 130 weeks if there is no capacity to perform pre-injury duties.
There are only two instances in which weekly payments can be claimed beyond 130 weeks.
Firstly, if a worker can establish that they have no current work capacity and this is likely to continue indefinitely, and if they are assessed to have more than 20% whole person impairment, they are eligible for weekly payments beyond 130 weeks. Alternatively, a worker may be eligible for top-up payments if they can prove that:
- They are working at least 15 hours per week; and
- They are earning at least $222 per week (indexed annually); and
- As a result of their injury, they are medically incapable of working beyond this level on an indefinite basis; and
- They have a whole person impairment (WPI) of greater than 20% whole person impairment.
These are strict tests and require sound supporting medical evidence.
How much can I claim for weekly compensation payments?
Under an accepted claim, the first 13 weeks weekly payments are calculated at 95% of a worker’s pre-injury average weekly earnings (PIAWE). From 14 weeks to 130 weeks, it is payable at the rate of 80% of a worker’s PIAWE.
If after 130 weeks, a worker is deemed to have no current work capacity and this is likely to continue indefinitely, and they meet the whole person impairment of more than 20% threshold then, weekly payments continue at the 80% rate.
In the event that a worker is eligible for top-up payments, there are special calculations which determine the payable rate. Read more about WorkCover top-up payments after 130 weeks.
Impairment benefit
What is an impairment benefit and how can I make a claim?
An Impairment Benefit claim is a lump sum claimed through the WorkCover insurer. It is a no-fault claim which means that the worker does not have to establish that the injury occurred through the fault of their employer or a third party.
In order to qualify, the worker must be assessed by an independent medical examiner as meeting the following minimum levels in accordance with the American Medical Association Guides (AMA) for physical injuries and the Guides to the Evaluation of Psychiatric Impairment (GEPIC) for psychiatric injuries:
- 5% for musculoskeletal injuries
- 10% for non-musculoskeletal injuries
- 30% for psychiatric injuries.
When can I claim an Impairment Benefit?
An impairment benefit can be claimed once an injury can be considered ‘stabilised’ or at least 12 months after the worker’s injury. Stabilisation refers to when all substantive treatment has been undertaken and when the injury is unlikely to become significantly better or worse in the foreseeable future.
There is no time limitation for making an Impairment Benefit claim.
How much Impairment Benefit can I claim?
The amount of payable compensation varies on the type of injury, the form and percentage of assessment and the year of injury. For a comprehensive guide on payable amounts for certain injuries, click here.
Common Law claim
What is a Common Law claim and how can I make a claim?
A Common Law claim is a ‘fault’ claim wherein an injured worker sues their negligent employer and/or a third party for compensation for their pain and suffering and loss of earning capacity (that is, economic loss).
In order to succeed in a Common Law claim, an injured worker must establish that:
- they have a Serious Injury; and
- the Serious Injury was caused by the negligence or fault of their employer and/or a third party.
A Common Law claim is initiated by the lodgement of a Serious Injury Application against the Victorian WorkCover Authority (VWA). The VWA will then determine if the injured worker meets the Serious Injury test under the law. The Serious Injury test is met if the worker rates at 30% whole person impairment under their Impairment Benefit claim, or alternatively, if they satisfy the ‘narrative test.’ The narrative test is met where the consequences of the worker’s injury are considered serious. This means that the consequences are very considerable, and more than significant, particularly when judged in comparison with other similar cases.
If this Certificate is granted, the worker is then entitled to commence a common law (negligence) claim. If the Certificate is not granted, the worker can elect to have their case heard by a Court in an action called an Originating Motion for a Serious Injury Certificate.
In terms of negligence, employers owe employees a non-delegable duty of care to take reasonable care for the health and safety of their workers. This means that an employer is required to take reasonable care to ensure that workers have a safe place and system of work and safe plant and equipment. Where an employer breaches their duty and this caused the worker’s injury, a worker may be successful in a claim for negligence.
Both Serious Injury and negligence must be satisfied in order to be successful in a Common Law claim.
When can I make a Common Law claim?
For injuries which occur in Victoria, injured workers generally only have six years from the date of injury to commence a common law claim by lodging a Serious Injury Application.
How much can I claim?
The amount of damages claimable varies depending on the injury and consequences of the injury.
For some examples of our outcomes, click below:
- Teacher wins her bullying case
- A fair recognition for a psychological injury caused by the negligence of an employer
- Professional printer’s painful prognosis
- Triumph after a young mum’s struggle with a back injury
- Dependency payout for weight-related death
- Teacher receives over $600,000 after being assaulted by student
- An injury 12 years in the making
If you or a loved one have suffered a work related injury, it is important to get legal advice to know your rights and entitlements. To arrange your free initial consultation, contact our legal team on (03) 9321 9988 or submit an online enquiry.
