Nothing in the world seems to stay the same. This is also true when someone has been badly injured at work.

A person who is injured at work is entitled to compensation by weekly payments of a percentage of their previous wages. The capacity to go back to work of someone who has been injured and the corresponding weekly payments are often disputed by the insurance companies. Once determined, either by WorkCover, a Judge or by a Medical Panel, it is not forever final.

The law recognises that a worker's entitlement to weekly payments can change over time. Therefore, a decision made at one point in time will not necessarily finalise the issue of an injured worker's capacity to work and their weekly payments forever.

In simple terms, if you have previously gone to Court and resolved your weekly payments for a limited period of time, you are not prevented from asking for your weekly payments to be reinstated in the future, if things change.

Case Law

In Rachel Fisuns v Mercy Health & Aged Care Inc [2017] VMC006 the Employer sought to refer the issue of the worker's current work capacity to the Medical Panel. The injured worker objected because this issue had previously been decided by the Medical Panel in 2012. The Plaintiff contended that going there again would be an abuse of process .

Magistrate Ginnane held that a second referral to the Medical Panel was not an abuse of process because the evidence showed a clear change in the Plaintiff's circumstances. His Honour held that in order for a Court to consider capacity when a prior determination had been made, there must be a change in circumstances and evidence of a potential change in capacity as a result of those changed circumstances.

In this case the emergence of non-work related factors (such as bankruptcy, a family death and parenting responsibilities) after the 2012 Medical Panel Opinion and two medical reports suggesting a change in the cause of the Plaintiff's incapacity were sufficient to meet this test.

A similar decision was reached in Turner Clinical Laboratories [2016] VMC009. Ms Turner had previously issued court proceedings in respect of the termination of her weekly payments of compensation. In 2010 she resolved these proceedings. The terms of settlement determined that payments were to be paid for 130 weeks and ongoing medical and like expenses with a denial of liability. The Plaintiff in 2015 made a request for weekly payments of compensation after the 130 week entitlement period on the basis that she had no capacity. The parties sought a preliminary ruling as to whether the previous dismissal of Court proceedings prevented Ms Turner from now seeking additional weekly payments. The Court held that the only issue resolved in 2010 was Ms Turner's capacity at the time "however, it did not extinguish her right to prove an entitlement to weekly payments beyond 130 weeks if she is able to satisfy the evidentiary onus that from 25 May 2015 her psychiatric condition has deteriorated to such an extent that she has no current work capacity which is likely to last indefinitely.

What this means for injured workers

These two cases demonstrate that weekly payments, and the concept of capacity, are not set in concrete .

A decision or ruling on these issues, or an agreement reached by parties, may not resolve the issue once and for all. An injured worker or the WorkCover agent may be able to re-open the issue later if a clear change of circumstances exists.

If your weekly payments have been terminated, or for more information, contact Redlich's Work Injury Lawyers on (03) 9321 9988.