What is a Serious Injury Certificate, and Why is it Important?
A WorkCover serious injury certificate is not just a formality, it is a necessary pre-requisite to claiming common law damages if injured at work. A serious injury certificate may allow a claimant to seek compensation for pain and suffering only, or both pain and suffering and economic loss.
Navigating the Serious Injury Certificate Process in Victoria
Securing a serious injury certificate involves making an application as required under the legislation and ministerial guidelines. This includes providing a detailed Affidavit, as well as other documents setting out the basis of the claim. This documentation is crucial as it provides the evidence needed to meet the criteria set by the Victorian workers’ compensation legislation.
The Victorian WorkCover Authority (VWA) determine serious injury applications within 120 days. During this time, the VWA may request additional information, conduct further medical evaluations and put the claimant under surveillance. Understanding this timeline helps manage expectations. It is very rare for a decision to be made by VWA prior to the 120th day.
The VWA (or the self-insurer) will determine if the injury qualifies as a serious injury. If the application is rejected and the worker disagrees, they can appeal to the County Court for a determination.
If a serious injury certificate or leave to proceed is granted, the parties will engage in a conference and a statutory offer process, which involves putting offers in writing. The offer from the Defendant can be a “nil offer”, meaning no money is offered to resolve the claim. These offers are useful for early resolution, however they also have implications from a costs perspective. As a result, it is critical that you obtain legal advice in order to minimise your costs risks.
Challenges in Meeting the Serious Injury Definition
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’:
- they have a whole person impairment of 30 per cent or higher; or
- 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 arguably more ‘serious’.
Meeting the serious injury definition is challenging due to the detailed requirements of the narrative test. Many injuries, despite being life-altering, may not meet these stringent criteria.
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.
Lesson for workers
Being denied a serious injury certificate by the VWA or a court is not necessarily the end of your matter. This decision can be overturned by a court, and in recent times, the Supreme Court of Victoria Court of Appeal has overturned decisions of the County Court to refuse leave to commence common law proceedings, which is unusual.
In that case, the matter of Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 114, the Court of Appeal overturned the decision of the County Court judge and granted leave to the Plaintiff to commence common law proceedings.
Case wins
In recent times, our firm has assisted deserving clients to fight the rejection of their Serious Injury Applications in the County Court.
Case Study 1
Earlier this year, Redlich’s Work Injury Lawyers was successful in obtaining a pain and suffering only Serious Injury Certificate from the Courts. In this matter, the Plaintiff was employed as a Learning and Academic Skills Adviser. Whilst at work, as the Plaintiff walked out of a consultation room she tripped over a heavy stone-topped coffee table which had been placed in the walkway. As a result of the fall, the Plaintiff injured her right hip, lower back and both knees.
We lodged a Serious Injury Application for pain and suffering damages for her back, hip and psychological condition, which was rejected, so we issued proceedings in the County Court.
Once the matter was issued in court, it was then referred by the Defendant to the Medical Panel in order to determine which specific injuries were related to employment. The Medical Panel found in our client’s favour. The matter was then listed before a judge to have the remaining issues heard.
For the Plaintiff to succeed in her application for leave to claim pain and suffering damages, she needed to establish that the permanent impairment consequences of her compensable spine injury are “serious”, that is, that they can be fairly described as being more than significant or marked, and as being at least very considerable. One of the matters left to be determined by the judge, was whether an unrelated injury to the feet was properly disentangled.
The judge found that our client was a credible and reliable witness and accepted our client’s evidence as to the impact of her foot condition. Our client was granted leave to bring common law proceedings for pain and suffering damages for her injuries
Case Study 2
Earlier this year, Redlich’s Work Injury Lawyers acted for a classroom teacher and a welfare officer at a primary school who suffered a psychological injury during the course of her employment.
During our client’s employment, she worked with at risk and challenging students and experienced stress and significant trauma as a result.
She was not provided with adequate training or support from her employer. Consequently, she took stress leave for two weeks before returning to work on reduced hours. A few months later, she was unable to cope and had a breakdown at work. She has not returned to work.
In late 2022, a Serious Injury Application was lodged by our office on her behalf. However, in early 2023, the application for a serious injury certificate for pain and suffering and economic loss was denied by the Victorian WorkCover Authority on the basis that she hadn’t suffered a serious injury as required by law.
In April 2023, we issued an Originating Motion in the County Court of Victoria. Following a two-day hearing in the County Court of Victoria in February 2024, the Court granted leave for our client to commence proceedings for damages for both pain and suffering and loss of earnings/economic loss in respect of her employment.
For assistance with your claim and obtaining a Serious Injury Certificate, call and speak to a member of our legal team on (03) 9321 9988 or submit an online enquiry.
