Before an injured worker can sue their employer for compensation, they must first establish that their injury qualifies as a ‘Serious Injury’.  If an injured worker cannot prove that they meet this definition they can’t sue, even though the employer may have not provided a safe workplace.

There are two ways a worker can establish that they have a ‘Serious Injury’:

  1. they have a whole person impairment under a special guide and it is 30 per cent or higher; or
  2. the worker satisfies the definition, by demonstrating that they have suffered:
    • a permanent serious physical impairment or loss of a body function that has a more than significant effect upon their working and/or domestic life
    • permanent serious disfigurement
    • permanent severe mental or behavioural disturbance; or
    • loss of a foetus.

An impairment assessment of 30 per cent is an extremely high threshold, and most workers do not satisfy this requirement.  The majority of serious injury applications are therefore made on the above listed definitions, often described as the ‘narrative test’.

With the exception of the narrative test for loss of a foetus, each of the tests require that the worker establish that:

The injury is ‘serious’ (or in the case of psychiatric injuries, that the injury is ‘severe’)
The question of whether an injury is ‘serious’ or ‘severe’ requires an examination of how the injury has impacted a particular worker's life.  For example, an injured little finger is unlikely to meet the definition of a ‘serious injury’ if that person can still perform daily activities and the injury does not cause them considerable ongoing pain.  However, for a trained classical pianist, an injured little finger would be ‘serious’.

The injury is permanent
The worker must demonstrate that the consequences of their injury extends beyond the initial period of trauma, and will impact their ordinary daily activities into the foreseeable future.  The worker’s injury will need to have ‘stabilised’, meaning it is unlikely to get substantially better or worse and there are no plans for any major treatment.

A detailed analysis of the overall consequences of the injury on their life needs to be made.  In particular:

  • their daily experience of pain or distress
  • the medication required to manage their symptoms
  • the impact of the injury on their sleep
  • the impact on their ability to perform domestic tasks around the home
  • the impact on social relationships and family dynamics
  • the impact of the injury on previous activities and hobbies. 

A claim for economic loss can also be made in circumstances where the worker has lost 40% or more of their earning capacity.

Serious injury applications are initially made to the Victorian WorkCover Authority (VWA).  If the VWA consider the worker’s injury is a ‘serious injury’, they grant a Serious Injury Certificate allowing the person to sue for compensation for their pain and suffering and loss of enjoyment of life. 

If the application is rejected by the VWA, the issue can be decided by a County Court judge about whether the injured person meets the ‘serious injury’ definition, and grant a right to sue, allowing the person to sue for compensation for their pain and suffering and, in some circumstances, economic loss.

For assistance with your claim and obtaining a Serious Injury Certificate, call and speak to our lawyers on (03) 9321 9988.

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