All about WorkCover Serious Injury Certificates (Vic)
In addition to your no fault WorkCover entitlements of medical and like expenses, weekly payments and an impairment benefit lump sum, in certain circumstances a person may be able to bring a common law claim for damages.
This is a lump sum claim for pain and suffering and in some instances, lost earnings.
In order to succeed in a common law claim for damages two criteria must be met.
Firstly, that your injury (or illness or condition) was caused by the negligence of another party. And secondly, that you have suffered a serious injury.
This page will focus mostly on the serious injury component.
Table of Contents
What is a WorkCover serious injury?
The term ‘serious injury’ is defined in law. The Workplace Injury Rehabilitation and Compensation act 2013(Vic) defines a serious injury as;
– A permanent serious impairment or loss of a body function, or
– A permanent serious disfigurement, or
– A permanent severe mental or permanent severe behavioural disturbance or disorder, or,
– Loss of a foetus.
How do you obtain a WorkCover serious injury certificate?
In order to be classed as having a serious injury under the law you must satisfy one of the following tests.
The narrative test
This is the most common gateway through which people are classed as having a serious injury and obtain WorkCover serious injury certificates.
This test is all about making an evaluation of a persons quality of life as a consequence of the injury.
It is basically about taking a before and after picture as to how the person was before the injury and then comparing that to how they are now. The bigger the difference the more likely they are to have a serious injury.
Should your matter ever go to court, a court will compare the injury that you have to other cases that have come before the court to determine the severity.
The consequences of the injury on you need to be at the very least, very considerable.
The deemed 30% test
This is the second gateway to obtaining a serious injury certificate and the least common.
Under this gateway, you need to be assessed as having a 30% or more whole person impairment rating.
This relates to your impairment claim.
So, for example, say that you suffered injury to your shoulder and you lodged a claim for impairment benefits.
You would be assessed by an independent medical examiner as organised by the insurance company. In some cases you may also be assessed by the medical panel.
In order to satisfy the deemed 30% test, your final impairment assessment must be 30% or greater.
Very few people satisfy this 30% test.
The WorkCover Serious Injury Certificate Claim Process
The first step in the process to obtaining a serious injury certificate is for a serious injury application to be lodged.
You can read more about serious injury applications here.
This is an application that usually is made up of an affidavit which is a document that tells your story and paints the important before and after picture as referred to above
The serious injury application will also include medical reports and other documents which support your case.
The serious injury application is then sent to WorkSafe, otherwise known as the Victorian WorkCover authority. They have 120 days to make a decision in relation to the serious injury application.
What they do is they then engage a law firm to consider the application for a serious injury certificate.
The decision that is made is either a yes or a no. Yes, you do have a serious injury or no you do not. This decision can come very early on during the 120 day period or it can be very late.
If you are granted a serious injury certificate during this period, the the next step is for The matter to be conferenced between the parties. This is a conference to see whether the matter can be settled and damages (a lump sum) paid to you.
If on the other hand you are not granted a serious injury certificate and your application is rejected, then you have two choices. The first choice is that you forget about your application and no longer pursue it. The second choice is that you elect to appeal the decision to reject your application for a serious injury certificate and contest the decision in court.
Assuming that I have obtained a serious injury certificate, what else should I know?
If you have obtained a serious injury certificate, the rest of the fight in your case will be about negligence. That is, showing that your employer, who owned you a duty of care, breached that duty of care and that as a consequence of that you suffered injury.
If you succeed in your case for common law damages, you can be compensated for pain and suffering and in some cases loss of earning capacity.
In relation to pain and suffering, this is determined by considering what impact your injury has had on your life and what impact it will have on your life into the future.
In relation to loss of earnings, in order to be able to claim loss of earnings as part of a common law damages claim, you need to show that as a consequence of your injury you have suffered a loss of earning capacity of 40% or more.
To illustrate this, let’s say that you were earning $1000 week in week out before the injury happened. In order to be entitled to claim loss of earnings, you would need to show that as a consequence of the injury, there is no job that you now can do where you would be able to earn $600 or more per week. That is, you have lost 40% of your earning capacity.
Copyright – this is original content from theworkinjurysite.com.au.
How long typically does a common law claim for damages take?
This is not an easy question to answer because there are so many variables.
Firstly, your injury needs to be stable. That is, it is not getting any better and it is not getting any worse.
Secondly, issues such as whether you have been granted a serious injury or whether you have to go to court and fight to obtain a serious injury certificate are relevant. Obviously, court can prolong matters.
Whether negligence is admitted or not is also a relevant consideration.
Obviously if everything goes your way, it is possible to resolve a common law claim relatively quickly. However, it is not unheard of for common law claims to run for many years. So the answer is, it just depends.
