When can you claim pain and suffering under a WorkCover claim?

There are two points under a WorkCover claim in Victoria where you can claim for pain and suffering. The first is an impairment lump sum claim and the second is a common law claim.

An impairment claim in most cases cannot be pursued until at least twelve months have passed since the date of injury. A common law claim cannot be pursued until you have either finalised an impairment claim, or if not, until at least eighteen months have passed since the date of injury.

What is pain and suffering?

Under a WorkCover claim, you can be compensated for pain and suffering.

But what exactly is pain and suffering?

Pain and suffering is exactly as it sounds.

That is, it is compensation that takes into account the pain and suffering that is related to an injury, illness or condition.

Examples of different elements that might be taken into account when assessing pain and suffering are:

• Impact on sleep
• Impact on activities of daily living
• Impact on your ability to perform household chores
• Impact on your ability to work
• Impact on your recreational and social activities

Pain and suffering under the Victorian WorkCover scheme

As mentioned above, there are two points during a WorkCover claim where you can be compensated for pain and suffering.

Impairment claim

An impairment claim is a lump sum claim that a person might be entitled to if they have suffered a permanent impairment relating to their employment.

That permanent impairment may be a physical injury, a psychological injury, or another condition or illness or a combination of these things.

You can read about impairment claims here.

A person can be paid an impairment benefit based on their whole person impairment rating.

So whatever your whole person impairment rating is assessed at, that will match up to a corresponding compensation amount.

When it comes to compensation for pain and suffering under an impairment claim, it is important to keep in mind that an impairment claim does not really take into account your pain and suffering – even though any compensation you receive is classed as compensation for pain and suffering.

What does this mean?

Here’s an example.

Let’s say that you have two people who both have a leg injury.

One of those people is a man who is nearing retirement.

The second person is a promising football player who is about to hit their prime.

Although the pain and suffering consequences on the second person would likely be much more significant than on the first person, that is, the extent to which the injury impacts their life would likely be greater, when it comes to an impairment claim they would likely be entitled to the same compensation amount.

This is something that is very important for people to keep in mind that intend to pursue an impairment claim.

So, whilst any compensation you receive under an impairment claim is considered to be compensation for pain and suffering, the compensation you receive doesn’t really take into account your pain and suffering.

When pursuing an impairment claim, a person will need to have any injuries, conditions and illnesses graded by appropriate doctors and have their whole person impairment rating determined.

During this assessment process, the doctors will not really be too interested in hearing about how an injury impacts your life and what your pain and suffering consequences are relating to that injury.

This is simply due to the nature of the claim.

The doctors are interested grading the injury, condition or illness and the permanent impairment that relates to the injury condition or illness.

The way they grade injuries, conditions and illnesses is set out in a book called the Guides to the Evaluation of Permanent Impairment (fourth edition).

One benefit of the impairment compensation payment being considered pain and suffering is that it will not have an impact on your other entitlements because it is not considered income.

It will not impact your entitlement to weekly payments or medical expenses and you will not be precluded from obtaining Centrelink payments.

One final thing that you should be aware of if you intend to pursue the second claim that we are going to discuss, being a common law claim, is that any compensation receive under an impairment claim will be taken into account in relation to a common law claim.

When can you pursue an Impairment claim?

You are able to pursue an impairment claim once all the injuries that you are claiming have stabilised.

Stability means that an injury is not getting any better and not getting any worse.

The WorkCover insurer in Victoria will generally not assess an injury prior to 12 months after the injury occurred.

In some instances they will but this is usually not the case.

Common law claim

You can read about common law lump sum claims here.

You can pursue a common law claim if you have a physical injury or a psychological injury.

You can potentially be compensated for two things under a common law claim.

The first is for pain and suffering and the second is for economic loss.

Pain and suffering takes into account the things mentioned earlier on this page (amongst other things).

Generally speaking, the more that an injury impacts your life from a pain and suffering perspective, generally speaking the greater the compensation amount that is payable.

There are of course other factors to take into account when determining the appropriate amount of compensation that should be paid on a pain and suffering basis (e.g. the extent of negligence on behalf of the parties).

When can you pursue a common law claim?

You will need to have finalised an impairment claim first or alternatively you can skip the impairment claim and pursue a common law claim but if you elect not to pursue an impairment claim first a minimum of 18 months from the date of injury needs to have passed before you can pursue a common law claim.

Conclusion

You can claim for pain and suffering under a WorkCover claim via an impairment claim and a common law claim.

An impairment claim in most cases cannot be lodged until 12 months after the injury past. In order to pursue a common law claim, you need to 1st pursued and resolved and impairment claim or alternatively, a minimum of 18 months post injury must have passed before you initiate a common law claim.