WorkCover and long term injury

If you have a long term injury and you have an accepted WorkCover claim, there are a few important things that you need to keep in mind.

Medical expenses for a long term injury

The WorkCover insurer will cover medical and like expenses for a long-term injury.

However, keep in mind that, generally speaking, the longer that you’ve been on WorkCover for, the more likely the insurer is to reduce or stop paying for particular types of medical expenses.

From time to time, the WorkCover insurer is likely to have you medically assessed to see whether the medical expenses you’re claiming are reasonable.

If you’ve been getting physiotherapy treatment, osteopathic treatment or chiropractic treatment for example, as time goes on the insurer will usually aim to progress you to a self management program.

One point that should be clarified here:

Some people believe that if they have an accepted WorkCover claim, the insurer is required to pay for their medical and like expenses for life.

Some people believe this to be the case particularly if they have obtained a common law lump sum claim.

This isn’t the case. If you have a WorkCover claim, you will never be guaranteed to have medical expenses paid to you on an ongoing basis forever. On the other hand, there is never a particular ‘cut-off’ point for medical expenses – for example, they don’t stop because your employment was terminated or you settled an impairment benefit or common law claim.

Surgery

If you require surgery for your long term injury, the insurer will usually want medical material addressing how the surgery is related to your work related injury.

If it has been some time since you’ve claimed medical and like expenses from the insurer for the work related injury, they may send you to an independent medical examiner for an opinion in relation to the surgery.

Note that if the independent medical examiner does not agree with your treating specialist that you need the surgery, you can contest this decision. The first step in doing so is by going to conciliation.

Weekly payments for long term injury

If you have a long term injury and as a result of that injury you do not have a capacity for any employment which is likely continue indefinitely you may have an entitlement to weekly payments beyond the 130 week mark.

As a result of changes to the WorkCover laws in 2024, if you hit the 130 week mark on or after 31 March 2024, then in addition to not having a capacity for employment which is likely to continue indefinitely,  you will also need to be assessed as having a 21% or greater whole person impairment rating,

If your payments ceased at 130 weeks because the insurer was of the opinion that you had a capacity for some work or because you did not hit the 21% impairment threshold – you may be able to make an application to the insurer for reinstatement of weekly payments post 130 weeks if your injury circumstances change (assuming you did not finalise your entitlement).

If you satisfy the post 130 weeks weekly payment test/s described above, if you have a long term injury and your capacity is not likely to change because of that injury, you may have an entitlement to ongoing weekly payments well into the future.

From time to time the WorkCover insurer may send you to an independent medical examiner to check and see whether there has been any change in your condition and whether any incapacity you have for work is still related to your work related injury.

In some instances, depending upon what the opinion of the independent medical examiner is, they may terminate your entitlement to weekly payments. Keep in mind however that you can contest the decision to do so (the first step in doing so in our opinion should be proceeding to conciliation).

Another thing to keep in mind in relation to claiming weekly payments post the 130 week mark is that if you have some capacity for employment but you’re not able to return to pre injury work levels (of hours and earnings), you may have an entitlement to top up payments from the insurer.

Impairment claim

In order to be entitled to an impairment claim, you need to have a permanent impairment.

This means that if you had an injury and it completely recovered, you will likely not succeed in an impairment lump sum claim.

If you have a long term injury and you are yet to lodge an impairment claim, given you’re likely to have some level of permanent impairment you may succeed in an impairment claim.

Common law claim

As with an impairment claim, in order to succeed in a common law claim you need to have a permanent impairment.

So if you had an injury and it completely resolved, you would likely not succeed in a common law claim.

If you have a long term injury and it is impacting your day to day life, you may succeed in a common law claim.

Unlike an impairment claim though, there is a time limit by which you need to lodge a common law claim. A common law claim must be lodged within six years from the date of injury (or when the injury first manifests itself). In certain instances this time can be extended.

TPD

If you have a long term injury and you have not and cannot return to work, you may have an entitlement to a total and permanent disablement (TPD) claim.

This is a lump sum claim that some people are able to pursue through insurance held in their superannuation.

It’s an insurance component, and if a person succeeds in satisfying the super fund that they are totally and permanently disabled, the benefit paid would be this insurance component.

It is different to the superannuation contribution amount that a person may have in their superannuation account. The contributions amount typically can be accessed as well if certain criteria surrounding the injury are met.

Conclusion

If you have a long term WorkCover injury, you can continue claiming medical and like expenses from the insurer, but there is no guarantee that they pay medical and like expenses forever.

As time goes on, you’ll likely find that the insurer will reduce and perhaps terminate your entitlement to some or all of your medical expenses.

You may have an entitlement to weekly payments if you have no work capacity post 130 weeks, or if you have a limited work capacity.

If you have a long term injury that results in a permanent impairment, you may succeed in an impairment claim or a common law claim. 

You may have an entitlement to a total and permanent disablement payment under your superannuation if you have a long term injury that is preventing you from returning to work.