What is a non work related injury in Victoria?

What is a non work related injury

There are a number of instances in which injuries will not be considered to be work related for the purposes of a Victorian WorkCover claim.

Injuries suffered outside of work

One of the most obvious instances is when an injury happened outside of work hours.

If you suffered an injury outside work hours, in most cases this will not be considered to be a work related injury for the purposes of a WorkCover claim.

For example, if you suffered an injury while playing sport on the weekend, or painting the outside of your home

One thing worth noting however is that it is possible that, although it may appear as though the injury occurred on the weekend and was therefore unrelated to your employment, there may in fact still be some contribution from work – and therefore, an injury may be considered to be work related for the purposes of a WorkCover claim.

For example, lets say that you suffered injury to your shoulder on the weekend outside work hours painting your home.

However your job during the week is heavy and repetitive.

And in the weeks and months leading up to the injury that occurred on the weekend, you had been attending your doctor complaining of shoulder pain that had been getting worse.

In this instance, depending upon what the medical opinion is in relation to the cause of your injury, it may be possible that the real cause of your injury was the heavy and repetitive work you were doing at work, and that the painting work you were doing outside of work hours was the straw the broke the camels back.

In this instance, you may be considered as having a work related injury but it would largely depend upon medical opinion.

Injuries travelling to or from work

If you suffered an injury while travelling to or from work, whether that is while you were driving your car, as a passenger, or on a motorbike. a pushbike or on public transport, any injuries suffered will generally not be considered to be work related for the purposes of a Victorian WorkCover claim.

You should however in most cases be covered by the TAC, rather than WorkCover.

There may be some instances however where an injury may be considered to be work related (and therefore falling under the WorkCover scheme) when traveling to or from work.

Say for example that you have a work ute and you were loading it at your home with work related items before heading off, and in doing so you suffered injury.

This injury may be considered to be work related and covered by WorkCover.

If you suffered injury while driving a car or motorbike for work purposes during work hours, then an injury may also be considered to be work related.

It is possible that in this instance, your no fault entitlements, that is: the payment of medical and like expenses, weekly payments, and an impairment benefit would be payable by the WorkCover insurer.

In relation to any common law entitlement, this would likely fall under the TAC scheme.

Pre existing injury where aggravated by work but aggravation resolves

Under WorkCover in Victoria, you are able to pursue compensation if you have a pre-existing injury that is aggravated as a consequence of your work.

Whether that aggravation is as a consequence of a single incident, so for example – you lift something heavy and suffer an aggravation to a pre existing shoulder injury.

Or, whether the aggravation occurred as a consequence over time.

For example, over the course of a two years due to heavy and repetitive lifting work, your shoulder gradually deteriorates.

What is important however to having a WorkCover claim accepted is that the aggravation itself persists.

Say for example that prior to any work related aggravation, you rated the injury as a 2 out of 10 in terms of impact on you.

You then suffer an aggravation at work which causes the injury to jump from a 2 out of 10 to an 8 out of 10 in terms of impact on you.

In order for the aggravation injury to be considered work-related, the aggravation needs to persist.

It doesn’t need to persist at the 8 out of 10 level, but it certainly needs to persist at more than a 2 out of 10 level (being the pre aggravation impact level).

It is the work related impact that you can be compensated for.

You will need to be able to demonstrate that you suffered an aggravation to the pre existing shoulder injury, and that the aggravation is persisting to some extent.

To read more about pre-existing injuries you can do so here.

‘Reasonable management action in a reasonable manner’

This is applicable only to people that are claiming psychological injury. It is not applicable to those with physical injuries.

If you are claiming that you have a psychological condition occurred as a result of one incident or gradually over time, it cannot be considered to be work related if it occurred as a result of reasonable management action taken in a reasonable manner.

This is quite a common issue that is in dispute in WorkCover matters relating to psychological injury.

A psychological injury may be rejected and deemed not to be work related if, for example, it is determined that the condition arose as a consequence of the employer acting reasonably.

So you might say that you were unfairly given a written warning, weren’t provided with the appropriate work shifts and similar issues.

But if it is deemed that the employer acted reasonably, your psychological condition would not be considered to be work related.

Not considered to be a worker under the relevant legislation

If you don’t fall under the definition of a worker under the relevant legislation, then any injury that you suffer will not be considered to be work related for the purposes of a WorkCover claim.

An example of where someone might not be considered to be a worker under the act is if they run their own business and they suffer an injury while sub contracting your services out to another business. You might for example set your own hours, get paid based on the job rather than the time worked, and provide most of your own equipment.

If it is found that you are not a worker under the act, then you will not be entitled to claim WorkCover benefits.

Injured suffered while volunteering

If you suffer an injury while performing volunteer work, in many instances that injury will not be considered work related for the purposes of a WorkCover claim.

However, volunteers that are assisting government agencies can be entitled to have a WorkCover claim accepted if they are carrying out specified duties (eg: SES and CFA workers).

If you were a volunteer and suffered an injury but are not sure whether you have an entitlement to claim, we’d encourage you to obtain WorkCover legal advice.

Self inflicted injuries by a worker

If an injury is self inflicted (in that a worker deliberately injured themselves) then it will not be considered to be work related for the purposes of a WorkCover claim.

There is an exception to this however, and that is where the injury results in serious and permanent disablement or death.

Injury that occurred outside the course of employment

If a worker acts outside the course of their employment and they suffer an injury, even if that injury occurs in the workplace, then the injury may not be considered to be work related.

For example, if a worker is intoxicated and falls down some stairs.

Or if they are skylarking with another employee.

Or if they stop performing their work to do something for themselves that is not work related (eg: use a particular piece of machinery for personal purposes).

WorkCover injury coverage is broad

Notwithstanding the above WorkCover does cover a broader range of injuries than you  might think.

You can read about what is considered to be a work related injury here.

Conclusion

There are a number of instances in which an injury will not be considered to be work related for the purposes of a Victorian WorkCover claim.

These include (but are not limited to): injuries suffered outside work, injuries travelling to or from work, injuries that occurred outside the course of a workers employment, injuries that were suffered when volunteering, and in relation to psychological conditions – those that occurred as a consequence of reasonable management action taken in a reasonable manner.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

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To contact Michael or Peter call 1800 746 442 or email [email protected]

Written by the Work Injury Site team