On 31 March 2024, subsequent to the writing of this article, significant amendments to the WorkCover legislation in Victoria were introduced. These amendments may impact upon the relevance of the information contained in this article. For detailed information regarding the WorkCover amendments, please refer to Changes to WorkCover laws by the Workplace Injury Rehabilitation and Compensation Modernisation Act 2023.
Broadly speaking, there are three forms of monetary compensation available to injured workers under the WorkCover scheme in Victoria. These are:
- Weekly payments of compensation;
- Impairment benefits; and
- Common law damages
Weekly Payments of Compensation
Injured workers are entitled to weekly payments of compensation if they are unable to work by reason of their work-related injury.
Whether or not an injured worker has an incapacity for employment is determined by medical opinion, in particular, the medical opinion of their medical practitioner.
Weekly payments are paid out as follows:
- For the first 13 weeks: weekly payments are paid at the rate of 95% of the injured worker’s pre-injury average weekly earnings.
- From 14 weeks onwards: weekly payments are paid at the rate of 80% of the injured worker’s pre-injury average weekly earnings.
Weekly payments are capped at a maximum of $2,660 currently and this amount is indexed annually.
Injured workers are entitled to a maximum of 130 weeks of weekly payments. After 130 weeks, in order to be eligible to receive weekly payments, the injured worker must satisfy a strict test which requires them to prove that:
- they have no current work capacity; and
- their incapacity is likely to continue indefinitely.
Alternatively, if an injured worker has returned to work in alternate duties after 130 weeks, the injured worker may be entitled to receive “top-up” weekly payments if:
- They are working at least 15 hours per week; and
- They are earning at least $228 per week; and
- As a result of their injury, they are likely to remain physically or mentally incapable of working beyond this level.
Recently, the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Bill 2023 was introduced which plans to, amongst other things, make changes to an injured worker’s entitlement to weekly payments after 130 weeks. In the event that the bill is ultimately passed, it is anticipated that after 31 March 2024, in addition to the above strict tests, an injured worker will be required to have a 21% or more whole person impairment in order to qualify for any weekly payments beyond 130 weeks.
Learn more about weekly payments of compensation.
Impairment Benefits
Once an injured worker’s injury is considered stable, they are entitled to lodge an Impairment Benefit Claim for Impairment Benefits.
An Impairment Benefit is a tax-free, lump sum amount in compensation that an injured worker is entitled to claim in the event that they reach the minimum impairment thresholds to qualify for compensation.
In order to qualify for Impairment Benefits, the injured worker’s level of impairment must:
- Be assessed pursuant to the:
- American Medical Association Guides (AMA) for physical injuries; and
- Guides to the Evaluation of Psychiatric Impairment (GEPIC) for psychiatric injuries.
- Be assessed to meet the following minimal level of impairment:
- 5% for musculoskeletal injuries
- 10% for non-musculoskeletal injuries
- 30% for psychiatric injuries.
By way of example, an injured worker is entitled to the following amounts of compensation should they receive the following levels of impairment:
| Level of Impairment | Amount of compensation awarded for 2023 injuries |
| 5% musculoskeletal impairment | $14,980 |
| 10% physical impairment | $24,180 |
| 20% physical impairment | $60,480 |
| 30% psychiatric impairment | $96,780 |
Common Law Damages
Finally, an injured worker is entitled to seek common law damages if an injured worker can show that:
- They have suffered a “serious injury”; and
- That they have suffered a “serious injury” under negligent circumstances.
What is a “serious injury”?
An injured worker will be deemed to have suffered a serious injury if they have a 30% or more whole person impairment following an Impairment Benefit claim.
If an injured worker does not have a 30% or greater impairment, they will need to make a “serious injury application” so that a lawyer for WorkSafe can assess the application and determine whether or not the injured worker satisfies the “serious injury test”.
If WorkSafe ultimately rejects the “serious injury application”, the injured worker will need to commence a case in the County Court and ask that a County Court Judge determine that they meet the “serious injury test”.
What common law damages are available?
Common law damages come in two forms. They include:
- Pain and suffering damages; and
- Loss of earnings damages.
These damages are subject to statutory maximums which are indexed annually. As at 2023, the statutory maximums are:
- $713,780 for pain and suffering damages; and
- $1,639,480 for loss of earnings damages.
What is the process for obtaining damages?
Generally speaking, damages are obtained through two ways:
- Through a process of negotiation and the injured worker takes an offer made on behalf of WorkSafe; or
- Through the determination of a Judge or Jury (made up of six people randomly selected). In our experience, most court cases are being determined by juries.
How much are injuries worth?
Unfortunately, there is no formula to establishing how much damages ought to be awarded to injured workers. Although, the following factors will be taken into account:
- The severity of the injured worker’s injuries;
- The significance of the pain and suffering consequences on the injured worker’s life;
- The age of the injured worker; and
- The degree to which the injured worker is incapacitated for employment.
How much has been awarded to injured workers for pain and suffering damages in the past?
The best way in which injured workers can get an indication of how much injuries are ordinarily assessed is to look at examples of awards of damages overtime in Court.
Here are some recent case examples:
| Case name | Key facts | Damages awarded |
| Atmis v Consolidated Property Services (Australia) Pty Ltd (2022) | Worker suffered right shoulder injury which required surgery due to manual handling. | $230,000 (although this was discounted by 10% due to a finding of contributory negligence) |
| Ly v Australian Pharmaceutical Industries Limited (2022) | Worker suffered aggravation of cervical spondylosis and degenerative changes in right AC joint requiring surgery due to manual handling. | $200,000 |
| Gartmann v Dominion Hotel Group Pty Ltd (ACN 135 105 887) (2022) | Young Plaintiff slipped during employment and suffered injuries to neck, left shoulder, left arm, chronic regional pain and psychological injury. | $225,000 |
| Hooper v Citywide Service Solutions (2022) | Plaintiff crushed by street sweeper against wall and suffered a traumatic brain injury, fractures to pelvis, ribs and spine (requiring surgery) and psychological injury. | $550,000 |
| McGiffin v Fosterville Gold Mind (2022) | Young mine worker injured when struck to the head by large bolt. Suffered chronic regional pain syndrome and psychological injury. | $450,000 |
| Stone v Kennedy Plumbing Services (Vic) Pty Ltd (2021) | Worker suffered left shoulder injury requiring surgery after falling through asbestos roof sheet. | $175,000 |
| Turner v Brett Conlon Racing Pty Ltd (2021) | Young female worker fell off a racehorse and suffered fractured jaw, loss of five teeth, right shoulder injury and psychological injury. | $185,000 |
WorkCover claims are incredibly complex to navigate. If you have suffered a work related injury, it is imperative that you get expert legal advice as soon as possible so that you can be guided through this complicated and daunting process with competence and care whilst you are at your most vulnerable.
Should you wish to better understand your entitlements to WorkCover compensation, please contact us on (03) 9321 9988 for a no-obligation, free phone consultation or submit an online enquiry today.
