WorkCover and an aggravation of a pre existing condition (Vic)
I’ve had clients think that they were not able to pursue a WorkCover claim because they have a pre-existing injury that was aggravated by a work related incident or during the course of their employment over time).
The WorkCover law in Victoria says that you are able to lodge a WorkCover claim for an aggravation of a pre-existing injury or condition.
The law specifies that you can lodge and have accepted a WorkCover claim if you sustain a;
…of any pre-existing injury, condition or disease.
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There should be a change in your injury or condition
Keep in mind that there needs to be a change to your injury or condition.
So let’s say that you have a pre-existing shoulder injury and that it’s normally a five out of ten in terms of pain and the restrictions it causes you.
If you aggravate that condition and it goes to a six out of ten for a couple of days and then reverts back to a five out of ten, you might struggle to prove that there has been an aggravation to your pre existing condition.
However, if the aggravation causes a jump from five out of ten to say an eight out of ten, and it remains that way many months after the aggravating incident, then this may well be an aggravation of your pre-existing injury and might well have resulted in a material change.
Obviously the opinion of any doctors that have treated you is very important in relation to whether there has been an aggravation or not.
The cause of the pre-existing injury is not relevant
It doesn’t matter whether you sustained the pre-existing injury at work.
It doesn’t matter whether you sustained the pre existing injury with your current employer or with a past employer.
And it doesn’t matter whether you sustained the pre-existing injury on the sporting field or at home.
What does matter however is how and where the aggravation occurred.
For the purposes of a successful WorkCover claim, there must be a connection between the aggravation and your employment.
It could be a single incident where the aggravation occurred.
Or it could be something that happened over the course of your employment over a period of time.
If you have had a WorkCover claim for the pre-existing injury already
If the pre-existing injury was the subject of a WorkCover claim, you need to consider whether you want to actually lodge a new claim or just claim under your existing claim.
Here are some considerations if this applies to you:
A new claim essentially gives you a new set of no fault entitlements (medical expenses, weekly payments, impairment claim) to zero. Using the example of weekly payments, even if you received the full period of weekly payments that you were entitled to under your initial claim, having a new claim accepted means that you may be entitled to be paid weekly payments all over again.
When was the original claim lodged? If it was ten years ago, you might find it harder to access your no fault entitlements such as medical and like expenses, compared to if the claim was more recently lodged.
If you want to claim weekly payments, do you have any weekly payments left to claim under your old claim? For example, are you close to 130 weeks with a work capacity? In this case, you may struggle to get weekly payments beyond 130 weeks under the old claim, and may wish to lodge a new claim.
Are you intending to pursue a common law claim? If so, it would be a good idea to get advice from a lawyer before lodging a further claim. The lodging (or not lodging) a further claim can have implications in relation to your chance of success with a common law claim.
Common law claims and pre-existing injuries
In addition to pursuing your no fault entitlements under a WorkCover claim, in some cases you might be able to pursue a common law claim where you had a pre-existing injury that was aggravated by your work.
In order to succeed in a common law claim you need to show two things.
The first is that there was negligence.
That is that another party contributed to your injury as a consequence of their negligence.
The second thing that you must show is that you have suffered a serious injury.
In matters that involve the aggravation of an injury, you’re only entitled to be compensated to the extent that your injury is now worse.
So, working with your doctors, a lawyer engaged on your behalf will need to disentangle what impact the work injury has had on you whilst removing the impact that your pre existing injury has had on you.
That is, you must be able to separate the effects of the pre-existing injury and the aggravation of symptoms and show that the consequences from the aggravation alone are serious.
You can lodge a WorkCover claim for an aggravation of a pre existing condition. However, there should be an aggravation that persists.
It does not matter how or where the original injury occurred. What matters is that there is a connection between the aggravation injury and your employment.
The aggravation injury could occur in a specific incident or gradually over time. For the purposes of a WorkCover claim, both are acceptable.
If you lodge and have accepted a new WorkCover claim, you should get a new set of no fault entitlements over and above the entitlements you have already accessed under your existing WorkCover claim.
If you intend to pursue a common law claim, you should get advice from a lawyer before you lodge a new WorkCover claim for an aggravation injury.