WorkCover payout for neck injury

If you suffer an injury to your neck at work there are a few different options open to you to pursue compensation.

We have covered compensation that relates to medical expenses and income replacement benefits elsewhere.

The two types of compensation you can receive by way of lump sum are an impairment benefit and a common law claim for damages.

The main difference between the two, other than the amount payable, is that that Impairment benefit is open to anyone to pursue who has an accepted WorkCover claim, regardless as to fault.

That is, you do not need to establish that someone else was at fault in order to bring a claim for impairment benefits. 

In contrast to this, a claim for common law damages does involve suing an at fault party.

In WorkCover matters, commonly this means that you are pursuing an action in negligence against your employer. However, it can also be against a third party.

An example of a third party would be if you were working offsite and you suffered injury at that location. In this instance, the person responsible for maintaining that location may be responsible for the injury, rather than your employer.

In terms of compensation amounts payable under either claim:

The amounts payable under an impairment claim are lower compared to a common law claim.

To give you an idea, the amount payable for a neck injury for an impairment benefit range between $13,000 to $20,000.

In a common law claim, if the claim is limited to pain and suffering only and not including any compensation for loss of earnings, then you could expect to receive a lump sum in the amount of about $80,000 – $200,000.

Claim for impairment benefits

The spine is divided into the upper middle and lower parts.

The neck, referred to as the cervical spine, is considered as distinct and separate from the middle and lower parts of the spine (thoracic and lumbar spine).

In terms of assessing your neck injury under an impairment benefit, if you have little to no symptoms and no radiology (damage that shows up on an imaging scan such as an MRI), then you may be assessed as having a 0% whole person impairment rating.

A 0% whole person impairment rating would not entitle you to any payment under this claim.

If however there is some damage to your neck on imaging scans, and you have ongoing problems such as pain or restriction in your ability to move your head and neck, then you may be assessed as having a 5% whole person impairment rating.

Under an impairment benefit, this would mean that you reach the necessary threshold in which to claim compensation and you would be entitled to the minimum amount payable which is just over $13,000.

If you have what is referred to as radiculopathy, which is pain or altered sensation with symptoms running down your arms or legs, and if this is verifiable by imaging scans, then you may be assessed as having a 15% whole person impairment rating which will entitle you to about $20,000 under this claim.

Common law claim for damages

As discussed above, in order to succeed in a common-law claim you need to show that someone else was at fault for your injury.

Common-law claims under WorkCover involve the employer being at fault in some way.

The way that compensation is determined under a common law claim is very different from an impairment benefit claim.

The common law claim takes into account a large number of factors to determine the appropriate compensation amount.

An impairment amount is based solely on assessments by doctors who grade injuries. These percentage figures then line up with compensation amounts payable.

Whereas a common law claim takes into account the individual circumstances of a person and this results in payment amounts that can vary significantly depending upon the circumstances of the case and a persons injury and the effect that injury has on the person.

One thing worth mentioning is that the amount that a person receives via a common-law claim is not based in anyway on the percentage figures that they receive under an impairment claim, whether that be 5 or 15% for example.

As an example, two people could be assessed as having a 5% whole person impairment relating to a neck injury. Under an impairment claim, they would both receive the same amount of compensation.

However, when it comes to the common-law claim, the first person may receive an additional $100,000, where the second person may receive $200,000.

The difference could be down to one of a number of factors. The most common factor is the impact of an injury has on one person compare to another.

If one person is impacted by an injury more than the other, and this will be taken into account in relation to the common-law claim.

When it comes to assessing a common-law claim is for a neck injury, what is looked at is the personal consequences of a person.

So, the example above may indicate that the first person had a fairly limited amount of restrictions cause by their neck injury and so it was determined that $100,000 was an appropriate amount of compensation for the injury and the consequences of that injury.

For example, they may return to work and only require a minimal amount of painkillers to be taken to manage the pain. They may have had some physiotherapy or other medical treatment after the injury was sustained, but after a period of time their treatment needs reduced.

Contrast this with the second person who still requires ongoing physiotherapy treatment on a weekly basis. The may have not been able to return to work to the same capacity that they are working prior to the injury.

Their ability to undertake recreational activities may have been significantly reduced and they no longer are able to participate in tennis as they did prior to the injury.

Further factors that may be considered here are;

• Sleep interrupted due to pain
• Regularly taking pain killing medication
• Ability to perform household tasks impacted

The second person may therefore resolve their neck injury for $200,000 or more on the pain and suffering only basis.

Economic loss

With a common law claim, if a certain test is met and a person may be able to claim loss of earnings if they have suffered economic loss. 

The rest of this article not cover the threshold test that a person needs to satisfy in order to claim loss of earnings.

However, if a person is entitled to pursue loss of earnings, then what the claim will be worth will be determined based on what restrictions a person has their ability to work.

Also relevant will be the age of the worker, their occupation, their skill set and previous experience, education and training.

It needs to be determined as best as possible how many years of work a person had left and what capacity they may be able to work now given their injury, whether that be full partial or not at all.

Once the above factors have been considered, there is a formula that is used to work out what economic loss will be worth.

A person will not get compensated dollar for dollar for the amount of income and they’ve lost in the future. It is not a process of multiplying the number of years left by the earnings lost.

There are reductions that need to be made that take into account the possibility that a person may not have worked until retirement age due to other factors.

It also takes an account the fact that compensation for loss earnings is paid in one lump sum upon settlement not over a period of time as a salary is paid.

So as a general rule, the younger a person is at the time of settlement of the economic loss claim, then the greater the reduction there will need to be.

If on the other hand the person that is injured is only a year or two away from retirement age then the settlement amount will likely not be reduced by any significant amount.