Workcover medical expenses after common law

A common question asked is “do my medical expenses stop once I have received a common law payment?”

We also get people coming to us that already have the belief that the funding of their medical treatment by WorkCover will stop once their common law claim settles.

We have also had numerous people tell us that they have been told by another lawyer that they will get “medicals for life” once their common law claim has settled.

So what actually happens?

The simple answer is that there is no impact on a workers entitlement to medical and like expenses, positive or negative, once their common law claim has resolved.

Whatever the worker’s entitlement was the day before the settlement, it will be the same the day after the settlement agreement is reached, and after they receive their settlement funds.

Medicals for life? Medicals ‘bought out’ on settlement?

This certainly does not mean that all medical and like services a worker was receiving at the time of the settlement will continue forever.

There is no way to guarantee medicals ongoing forever.

It cannot be part of a settlement agreement that medical and like expenses continue forever, or for any other length of time.

The reverse is also true – it is not possible to reach agreement with WorkCover that an additional amount of lump sum compensation is paid on the basis that the entitlement to medical expenses ceases.

What might happen to medicals after a settlement

Firstly, it could well be that nothing happens, and WorkCover continues to pay medical and like expenses without any issues.

However, a WorkCover insurer always has the right to review an entitlement to medical and like expenses and can reduce or terminate someone’s entitlement to a particular expense or to all expenses, depending on the circumstances.

This typically happens after the insurer has arranged for you to be medically examined by an IME, or if they send out a questionnaire to you or to your treating medical practitioners regarding your treatment.

They will then make a decision in writing which they must provide to you, setting out the reasons why your medical and like expenses have been terminated or reduced.

As noted above, they cannot rely on your common law claim resolving as a reason for making this decision.

While resolving your common law claim requires you to sign a deed of release which means you can make no further claim for lump sums, the deed of release does not in prevent you from challenging a WorkCover decision to not pay for medical treatment.

The situation previously

In the past, a common law settlement that included a payment for economic loss (loss of earnings) would potentially have an impact on medical and like expenses.

This was because the legislation says that 52 weeks after a workers entitlement to weekly payment ceases, the test to stay on medical and like expenses changes.

Prior to that 52-week mark, what’s relevant is whether the expense is reasonable and is related to the accepted injury or injuries.

After 52 weeks, the test becomes the expense is only payable if:

• a worker has returned to work but could not remain at work if the service was not provided; or
• a worker has returned to work, but surgery is required; or
• a worker requires modification of a prosthesis; or
• the service is essential to ensuring a worker’s health or ability to complete necessary activities of daily living does not significantly deteriorate.

This is obviously a much narrower test than the reasonable and related test.

Fortunately, WorkCover now will not engage in a review of medical and like services 52 weeks after a common law settlement that includes economic loss (and as such, weekly payment entitlement ceased)

Conclusion

Medical and like services are in no way impacted by resolution of a common law claim, whether it be for pain and suffering only or for pain and suffering and economic loss.

The easiest way to describe this is what the WorkCover insurer is paying for on the day before the settlement they will pay for on the day after the settlement.

The WorkCover insurer can always review an entitlement to medical and like services down the track, but they cannot rely on the settlement of a common law claim as a reason to cease the entitlement.

Through our law firm, we are able to assist with challenging decisions regarding medical and like expenses in most circumstances, so feel free to get in touch to talk further if you need to.