Does WorkCover cover contractors?

WorkCover does cover contractors in certain instances in the event they suffer an injury, illness or a condition related to their employment.

Contractors are not automatically covered by WorkCover, however. Whether a contractor is covered under WorkCover depends upon the contractor meeting a certain criteria.

Note: The term ‘contractor’ covers a wide variety of individuals who may operate as sole traders or through companies, partnerships or trusts.

Criteria for a contractor to be covered by WorkCover

In order to be entitled to WorkCover benefits in Victoria, a person must first satisfy three broad criteria.

These are;

• That the person suffered an injury, conditional illness related to their employment.

• There is a connection to Victoria.

• They are considered a worker under the WorkCover legislation.

If you are a contractor, assuming that you satisfy the first two criteria, the issue will obviously be in relation to the third.

That is, whether you are considered a worker under the WorkCover legislation.

Read more: who is considered a worker under WorkCover

When is a contractor a worker for the purposes of WorkCover?

Determining whether a contractor can be considered as worker in Victoria and therefore be entitled to be covered by WorkCover can be a complex exercise.

It’s not uncommon for there to be disputes regarding whether a person is a worker or an independent contractor.

Before accepting a WorkCover claim, the insurer will need to determine whether you fall into one of categories below:

• A worker under the WorkCover legislation
• Deemed to be to be a worker under the WorkCover legislation

The WorkCover legislation defines who is a worker and who are deemed workers or deemed to be working under a contract of service.

The relationship between the contractor and the employer will be looked at.

A key consideration as to whether someone is a worker or not for the purposes of WorkCover is whether that person is running a business or not.

An employee is someone who provides labour to an employer and can be considered a part of the employer’s business.

Contractors on the other hand typically provide a service that is marketed and sold independently, ie: they are running their own business.

Here are some general guidelines as to who might be considered a worker when it comes to claiming WorkCover.

Please note, this list should be treated as a guide only and is not an exhaustive list.

The more questions you answer yes to below, the more likely you are to be considered to be a worker for the purposes of a WorkCover claim:

• Do you perform work under the control and direction of an employer?
• Do you have a fixed salary with entitlements and superannuation?
• Are you provided with all or some of the tools required to perform your job?
• Do you have an ongoing expectation of work?
• Do you have standard or set hours?
• You yourself are required to perform the work, rather than being able to contract the work out?
• Are wages paid periodically, rather than by the job?
• Are you tied exclusively to the employer or are you free to carry out work, particularly of the same kind, for others?
• Are you required to work under similar conditions as other members of staff?

Note: just because you don’t satisfy all of the above criteria does not mean you are not a worker.

As a contractor, you can lodge a WorkCover claim if you’re not sure whether you have a WorkCover entitlement

Sometime with claims involving contractors, they will satisfy some of the relevant criteria to be considered a worker for the purposes of a WorkCover claim, but not others.

That is, there might be an argument to be made that they should be considered a worker, and an argument to be made to say that they should not be considered a worker.

Generally speaking, if you are a contractor or sub contractor and you have suffered an injury, illness or condition related to your employment, you should consider lodging a WorkCover claim and see what the insurer says.

That being said, you should still consider whether a WorkCover claim is right for you in the first place in relation to the benefits of having an accepted claim.

A WorkCover claim is initiated via the lodgement of the WorkCover claim form.

As a contractor, once you’ve lodged the WorkCover claim form, the insurer will go through the usual process of determining the claim which will likely involve having you medically assessed and additionally, a circumstance investigation report being obtained.

Sometimes with WorkCover claims involving contractors the insurer will request further information from you.

They may want taxation material or other documentation relating to the work you were doing such as contracts.

What you can claim under WorkCover as a contractor

If a contractor is covered by WorkCover, then generally speaking they will be entitled to claim the same benefits that an employee would be entitled to claim.

That is, medical expenses, weekly payments, and impairment benefit lump sum and potentially a common law lump sum.

There are no reductions in any of your entitlements because you are a contractor.

One issue that you might come across however is if you are claiming weekly payments.

In many instances contractors are remunerated in a different way to regular employees and so there is sometimes a dispute as to the appropriate amount to be paid to a contractor by way of weekly payments.

Because of this, you should ensure that your PIAWE (link) is checked and the amounts you’re getting paid by way of weekly payments are checked to ensure that you’re getting paid what you should be.

In relation to other WorkCover entitlements, just as an employee would be you’re entitled to the payment of medical and like expenses if you have an accepted WorkCover claim.

You’re also entitled to pursue an impairment benefit lump sum.

And potentially a common law claim if you’ve suffered a serious injury and if there was negligence on behalf of the employer or third party.

If your WorkCover claim is rejected on the basis that you are not considered to not be a worker, then we would recommend that you obtain legal advice in relation to the merits of pursuing the matter further.

If there is merit in pursuing the matter further then we would recommend proceeding to conciliation as a first step in the appeal process.

What alternative options are open to you other than WorkCover?

You do have some other options open to you.

Some of these options are actually still open to you if you are considered a worker and pursue a WorkCover claim.

One option that you can pursue potentially is what’s called a Wrongs Act claim.

In order to pursue a Wrongs Act claim, the injury that you have suffered needs to have stabilised and you need to obtain what’s called a Wrongs Act certificate.

A Wrongs Act certificate is a document that certifies that you have been assessed as having a greater than 5% whole person impairment rating.

There needs to be negligence on behalf of the company or third-party such as an equipment manufacturer in order to succeed in a Wrongs Act claim.

Under a Wrongs Act claim, you can potentially be compensation for pain and suffering, lost earnings as well as medical expenses and other out-of-pocket expenses.

In addition to a Wrongs Act claim you might also have an entitlement to a Total and Permanent Disability claim or a income protection claim – both of which are typically obtained via your superannuation fund. Sometimes, people may have other insurance policies with these two insurance components.

There may also be other avenues that you can pursue depending upon the industry that you worked in and how and where the injury happened.

Conclusion

In certain instances WorkCover will cover a contractor if the contractor can be considered to be a worker.

There are a number of criteria that will be taken into account when determining whether you are a worker.

If your WorkCover claim is accepted, then you’ll be entitled to the same benefits that an employee would be. You might notice however if you elect to claim weekly payments from the insurer, there may be some issues with the insurer calculating your entitlement and for this reason your PIAWE has been calculated correctly and your weekly payment amounts are correct.

There are alternatives to pursuing a WorkCover claim as a contractor. You might have an entitlement to pursue a Wrongs Act claim, a TPD or income protection claim, or other claims depending upon the injury and the industry you’re in.