Can I claim WorkCover during an employment probation period?
You can claim WorkCover during an employment probation period in Victoria.
This is the case regardless as to whether you are a full-time, part time or casual worker. It’s also the case regardless as to the length of your employment.
You could be employed with an employer for one day or for two months and in both instances be subject to a probation period, and you would still be entitled to claim WorkCover if you suffer an injury related to your employment.
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Entitled to the same WorkCover benefits
As an employee that is subject to a probationary period relating to your employment, it is important to be aware that if you suffer an injury related to your employment you are entitled to the same benefits under WorkCover as a person who might have been employed with the employer for a number of years.
This means that you are entitled to the payment of medical and like expenses, weekly payments if your ability to work has been impacted as a result of the injury, and potentially to two lump sum claims.
The first lump sum claim is an impairment benefit claim and the second lump sum claim is a common law claim.
That being said, there are some small but important points but you need to keep in mind that may assist.
Claiming WorkCover in Victoria begins with the lodgement of a WorkCover claim form. If you want to know how to lodge a WorkCover claim our WorkCover claim lodgement pack may help.
Calculating your pre injury average weekly earnings
When it comes to claiming weekly payments under WorkCover, the insurer will need to determine your pre injury average weekly earnings (PIAWE).
You can read about PIAWE here.
There will be some differences in how your PIAWE we will be calculated if you are under a probationary period with an employer.
Normally what happens is that the insurer will take the average of your earnings over the twelve months prior to suffering the injury that you worked with an employer.
When you are under a probationary period with an employer, you typically will have been with that employer for less than three months or perhaps six months.
In this instance, what the WorkCover insurer will do is they will calculate the average of what you earned over the period that you worked.
If you were with this employer for two weeks before suffering the injury, the insurer will take an average of what you earned over the two week period.
This may in some cases provide the insurer inaccurate picture of what your pre injury average weekly earnings would have been had you worked with this employer for a longer period of time (eg: 12 months).
For example, when some people start with an employer they may be working reduced hours compared to what they would ordinarily be working had they been with this employer beyond the probation period.
If you disagree with the PIAWE calculation while under a probation period
There are some things that can be done if you disagree with the calculation of your preinjury average weekly earnings.
If you believe that your pre injury average weekly earnings have not been calculated correctly, you can ask the insurer to perform a review.
You can also elect to proceed to conciliation.
If you do have some concerns that you’re pre injury average weekly earnings haven’t been calculated accurately, then it would be a good idea to seek WorkCover legal advice and have the insurers calculations reviewed.
Impairment lump sum claim
This is the first lump sum claim open to people under a WorkCover claim.
These are explained here.
Even though you are subject to a probationary period and you may have only been with an employer for a matter of weeks or maybe a couple of months, you need to keep in mind firstly, you’re entitled to pursue a claim just like any other worker.
And secondly, if you succeed in an impairment benefit lump sum claim you are entitled to the same amount of compensation as any other worker with that injury.
The length of your employment has no bearing on the amount of compensation that you are paid under an impairment claim.
Common law claim for damages
Being under a probationary period may impact an aspect of your common law claim.
You can read about common law claims here.
In general, there are two aspects to a common law claim that you can be compensated for.
The first is for pain and suffering and the second is for economic loss.
It’s worth mentioning that the length of time that you’ve been employed with an employer has no bearing on whether you can pursue a common law claim or not.
A person that has been with an employer for one day has the same entitlement to pursue a common law claim as a person that has been with an employer for many years.
In relation to economic loss, which you can read about here, this is compensation for loss of earnings as a result of an injury.
What you are being compensated for is the difference between what you can reasonably be expected to earn now into the future given your injury, and what you could have earned had you not been injured.
Given that you are under a probationary period, you’ll likely have only been with an employer for a matter of weeks or for a few months and therefore, an accurate snapshot of your employment earnings with this employer, and indeed your income progression with this employer, may be more difficult to ascertain compared to if you had been with this employer for a longer period of time.
You are able to lodge a WorkCover claim if you are under a probationary period relating to your employment.
You will have the same rights and entitlements under WorkCover as someone that has been with an employer for many years.
There may be some differences in how your pre injury average weekly earnings are calculated.
And if you elect to pursue a common law claim, and as part of that common law claim you wish to obtain compensation for loss of earnings, it may be more difficult to ascertain what your loss of earnings are. This is more related to the length of your employment however, rather than specifically being under a probationary period.