WorkCover for nurses
This page will explore some key issues when it comes to lodging and claiming WorkCover if you are a nurse in Victoria.
We’ve represented many nurses with their WorkCover matters over a number of years.
A WorkCover claim for an injured Victorian nurse is for the most part no different to any other claim for a worker from a different industry.
However, there are a few key differences explained below that might assist you if you’re a nurse about to lodge a WorkCover claim, or if you have a WorkCover claim on foot.
Table of Contents
When lodging a WorkCover claim as a nurse
In order to initiate a WorkCover claim, you will need to complete and lodge a WorkCover claim form.
This is the only way you can initiate a claim.
You need to complete and lodge the specific form.
The most common injuries sustained by Victorian nurses and midwives, according to WorkSafe data are as follows:
- Shoulder injury (16%)
- Back injury (29%)
- Forearm wrist injury (6%)
- Hand, fingers (5%)
- Knee injury (9%)
- Psychological injury (13%)
Course of employment injury or single incident?
Nursing work can be heavy and repetitive.
Many nurses have been doing their job for a number of years performing heavy and repetitive duties.
You can see from the WorkSafe data above, that the most common injuries for nurses are back injuries and shoulder injuries which is reflective of the nature of the work.
Sometimes a nurse can suffer an injury (or notice pain for the first time) at work on a particular day and then lodge a WorkCover claim specifying that the injury occurred on that particular day.
For example, the nurse might have simply bent down to pick something up off the ground and felt pain in her back while doing so.
Or might have performed another seemingly small physical movement.
The reality however might be that the injury actually occurred over a period of time due to the heavy and repetitive work a nurse has been required to do.
And the noticing of the injury/pain is not when the injury itself occurred.
And on the WorkCover claim form, instead of specifying that the injury occurred on a particular day, it may be more accurate to refer to the injury as occurring over the course of employment.
This usually won’t impact a claim being accepted.
That is, if a person notes on a WorkCover claim form that they injured themselves in a single incident (such as bending down to pick something up off the ground) – when instead what they should have written was that they injured themselves due to the heavy and repetitive nature of their work – all else being equal, both claims are just as likely to be accepted.
But if a person wishes to pursue lump sum compensation down the track once the WorkCover claim has been accepted, what they write on their initial claim form can be very important.
And so, it’s best to get things right from the start when lodging a WorkCover claim and that means being accurate with how the injury occurred.
So before lodging a claim, it’s a good idea to have a chat with your treating medical practitioner and ask them for their opinion on how the injury actually occurred.
Was the injury something, likely, that developed over a period of time?
Medical practices attached to hospitals
Some of the facilities where nurses work have medical practices attached to them. For example, a person may work as a nurse at a hospital – and that hospital has a GP clinic attached to it.
That GP clinic may be run by the hospital and operate under their banner, or a different name.
Sometimes, a nurse may elect to see a GP at one of these sorts of medical practices for treatment.
When it comes to pursuing a WorkCover matter, it might give you piece of mind to consult with a doctor that does not have a connection to the employer.
This may make you feel freer to discuss things with your GP without having to worry about whether the employer may somehow become aware you are receiving medical treatment, or details of that treatment.
Further, you want a GP that doesn’t feel, potentially, conflicted between their obligations to you and the demands or requirements of the employer. Seeing someone from another clinic would alleviate this issue.
Something to think about.
Check your EBA for provision of top up payments
Once your WorkCover claim has been accepted, if your ability to work has been impacted, either on a partial or complete basis, you’ll likely be entitled to claim weekly payments from the WorkCover insurer.
Weekly payments are not paid at the rate of 100% by the WorkCover insurer.
For the first 13 weeks of payments, they’re paid at the rate of 95% of your pre-injury average weekly earnings.
Thereafter, payments are made at the rate of 80% of your pre injury average weekly earnings.
The shortfall in most instances (between the 95%/80% and 100%) is not something that people will be able to claim for.
However, many nurses are covered by an Enterprise Bargaining Agreement (EBA) that provides provision for WorkCover top up pay. It’s sometimes referred to as accident make up pay in EBA’s.
He is an example from a current EBA where accident make up pay is to be paid to a nurse who is on WorkCover payments (below):
You can see that this EBA specifies that an injured nurse is to be paid accident make up pay/top up pay for a period of 39 weeks while they’re on WorkCover.
This means that for the first 13 weeks, an injured nurse would be paid the difference between 95% and 100% and there after for up to a total of 39 weeks, they’ll be paid the difference between 80% and 100%.
Any accident make up payments in this instance would need to be paid for by the employer, not the WorkCover insurer.
There will also usually be exclusions in EBA’s when it comes to accident make up pay – that is, situations in which make up pay won’t be payable.
Here’s an example list of exclusions from an EBA covering nurses (below):
Don’t just assume that because you work for a large employer that they will automatically include make up pay if you’re receiving WorkCover weekly payments.
Sometimes employers, even very large employers, will miss including make up pay when paying a person who is on WorkCover.
If you’re on WorkCover weekly payments and you’re covered by an EBA that specifies make up pay, but make up pay has not been getting paid to you, you can contact your employer and ask them to clarify why.
Alternatively, you can ask your union to assist or engage a lawyer.
Any make up pay owed to you can be paid to you that you are owed by way of a lump sum.
Even if you are no longer employed by the injury employer that owes you accident make up pay, you can still request make up pay be paid to you from your ex employer.
In certain instances however you may no longer have the right to claim arrears of make up pay. For example, if you signed a settlement agreement document or a release finalising all of your employment entitlements.
Working light duties while on WorkCover as a nurse
When you have a WorkCover claim and your ability to work is impacted, if you wish to obtain weekly payments you will need to obtain certificates of capacity from your doctor.
It is very important that the doctor accurately certifies your work capacity.
On the certificate of capacity, the doctor will need to certify whether you have a capacity for full unrestricted work duties, modified duties, or no duties at all.
And the doctor will need to specify what jobs are appropriate for you to do, and what jobs are not appropriate for you to do, given your injury and subsequent restrictions.
To do this, your doctor must understand the nature of the work that you do so they can accurately certify you.
Your doctor needs to specify what you can’t do and what you can do.
This helps ensure that the work you return to is appropriate given your injury. It helps ensure that you don’t reinjure yourself or make the injury worse.
If you’ve been off work for a while and a return to work plan is drafted, your doctor will need to sign off on the return to work plan and the duties described therein.
So take the time to discuss with your doctor the nature of work you do.
Ensure the light duties you’re doing are appropriate given the nature of your injury.
Conclusion
When lodging a WorkCover claim, nurses should ensure to clarify with their doctor as to whether the injury they are claiming for occurred in a single incident or over a period of time – potentially due to the heavy and repetitive work that nurses are required to perform.
If claiming weekly payments, many nurses will be entitled to top up pay as specified in an enterprise bargaining agreement.
Nurses should consider seeing a medical practitioner (for treatment and for certificate of capacity purposes) that is not associated with the facility at which they work.
Given the heavy and repetitive nature of many nursing tasks, nurses should ensure that they discuss the work they do with their GP. This helps ensure, as much as possible, that the work that a nurse is required to do post injury is appropriate.
