Deemed serious injury and WorkCover
A deemed serious injury under WorkCover is when a person has been assessed as having a 30% or greater whole person impairment rating for their impairment claim.
An injured worker will automatically be considered (ie; deemed) as having a serious injury for the purposes of a common law claim.
Generally speaking, there are two boxes that you must show to succeed in a common law claim. The first is that you have a serious injury and the second is that there was negligence on behalf of your employer or a third party.
A deemed serious injury means you have ticked the first box to obtaining a common law lump sum.
The rest of his page will explore the topic further.
Table of Contents
A deemed serious injury means 30% or greater assessment under an impairment claim
An impairment claim is a lump sum claim under the WorkCover scheme that you can pursue if you have a work related injury.
You can pursue an impairment claim relating to:
- A physical injury
- More than one physical injury
- A psychological injury
- A combination of physical and psychological injuries
- Conditions and diseases
As part of the impairment claim, any injuries that you’re claiming are assessed by an independent medical examiner (IME) – or in some instances more than one IME.
In an impairment claim, it is the role of the IME to determine your whole person impairment rating relating to the claimed injuries.
The whole person impairment rating takes into account all of your claimed injuries that the insurer has accepted as being work related.
If you are assessed as having a 30% or greater whole person impairment rating, then you will succeed in your impairment claim and you will be deemed as having a serious injury.
What happens if I am deemed as having a serious injury?
Once your impairment claim has resolved, you can then (if you wish) proceed with a serious injury application.
The serious injury application is the first step to claiming a common law lump sum for your injury.
Even though you have been deemed as having a serious injury you (more specifically, your lawyers) will need to prepare and lodge a serious injury application.
This means the following material will need to be obtained: medical material from your treating doctors and health practitioners, affidavit material, income and pay material and other relevant material in support.
They’ll then need to lodge the application on the Victorian WorkCover Authority who will then allocate the serious injury application to one of their panel law firms.
It will then be the job of the panel firm to review the serious injury application.
Even though you have been deemed as having a serious injury application, they will still need to go through this review process.
They have 120 days to review the application.
If you hadn’t been deemed as having a serious injury, during this 120 days they would need to make a decision as to whether to grant you a serious injury certificate or not.
But given you have been deemed as having a serious injury, they will review the application and at some point during the 120 days (usually closer to the 120 day mark than day 0), they will write to your lawyers and provide them with your serious injury certificate.
What happens after the serious injury certificate has been provided?
The parties will then be required to go to a settlement conference.
Many matters resolve at these settlement conferences.
If the matter doesn’t resolve at the settlement conference, then the parties will be required to make statutory offers and statutory counter offers.
If the matter doesn’t resolve either by way of acceptance of one of these offers or by way of further negotiations, then your lawyers will need to issue a writ.
A writ sets your WorkCover matter down for hearing in either the County Court or Supreme Court.
Do I have to pursue a common law claim if I am deemed as having a serious injury?
No, you do not. Just because you have been assessed as having a greater than 30% whole person impairment rating and therefore been deemed as having a serious injury, does not mean you need to pursue a common law claim.
Under the WorkCover scheme, you can pick and choose what entitlements you pursue – and this applies equally to common law claims.
An important point about deemed serious injuries
Under the Victorian WorkCover scheme, when pursuing lump sum compensation you have two options: an impairment claim and a common law claim.
You can pursue either or both of these claims.
Sometimes what lawyers will do is skip the impairment claim and go directly to the lodgement of a common law claim.
This is referred to as ‘direct lodgement’.
In some instances this is fine.
In other instances however there is the possibility of getting assessed as having a 30% or greater whole person impairment rating in relation to your impairment claim.
And if there is the prospect of getting to this 30% mark in your impairment claim, in general we would recommend the lodgement of an impairment claim in order to try and obtain a deemed serious injury.
Getting deemed as having a serious injury can potentially save you a lot of time in relation to your claim.
Lets say that you elect to bypass the impairment lodgement and proceed directly to a common law claim. You lodge a serious injury application and WorkCover’s lawyers decide that you don’t have a serious injury.
Then what you need to do is issue and serve what’s called an originating motion which sets your WorkCover matter down for hearing in the County Court. This can add about 6-8 months to your matter.
If you are a chance of being deemed as having a serious injury, in general you should proceed with an impairment claim first.
This is particularly the case if you have a psychological injury.
A deemed serious injury under WorkCover occurs where a person has been assessed as having a 30% or greater whole person impairment rating in relation to their impairment lump sum claim.
Once a person has been deemed as having a serious injury, they can lodge a serious injury application. The application will be reviewed by WorkCover’s lawyers and the person will be provided with a serious injury certificate.
The injured worker can then proceed to a settlement conference and if the matter doesn’t resolve there, through the statutory offer and counter offer process, and potentially with further negotiations between the parties. If the matter fails to resolve, then the person will need to issue a writ and proceed to hearing.
Getting deemed as having a serious injury can in some instances save a significant amount of time in a person’s common law claim.