Those who sustain injury at work or as a result of work will normally be entitled to assistance to aid in their recovery and to support them financially through the workcover scheme.
The basic criteria that needs to be established:
- You are a worker; and
- You have sustained an injury; and
- The injury has occurred in or arising out of the course of your employment.
Your entitlements will be governed by the Comcare scheme if you are employed by a Federal Government Department or a large organisation which has successfully applied to have a Comcare licence. All other injured workers in Victoria will have their rights governed by the Victorian State Worker’s Compensation scheme.
Important tasks if you’ve been injured
In the event you believe you have sustained a work place injury, there are a number of important tasks that you should attend to as soon as possible. These include:
- notifying your employer of the injury and how it occurred (preferably by completing a written incident report),
- seeking medical assessment,
- obtaining medical certificates on the workcover approved forms if you will be unfit for work, and
- lodging a workcover claim form.
Some of the benefits you may be entitled to with an accepted claim include: –
- Reasonable medical and rehabilitation expenses
- Assistance with activities of daily living such as home help
- Rehabilitation and return to work programs
- Vocational retraining, if your pre injury employment is no longer suitable
- Weekly payments of compensation/incapacity payments
- Lump sum compensation for permanent impairment if you injury meets the necessary threshold under the relevant medical guides
Common Law Compensation
In addition, some injured workers may be entitled to pursue lump sum compensation through what is referred to as a “Common Law” claim.
If you fall under the Victorian Worksafe scheme, you will need to satisfy a number of criteria in order to receive any “common law” compensation.
- First, you must meet the legal definition of having sustained a work related “Serious Injury”.
- Secondly, it must be shown that your injury has been caused by the negligence of your employer or in some cases a third party.
- If these two criteria are established you may receive compensation for your “Pain and Suffering” consequences and also your loss of earning/earning capacity.
- If you have already received a Lump Sum payment for permanent impairment this amount will need to be taken into account for the assessment of your pain and suffering damages.
- If you have received past and/or have ongoing entitlements to weekly payments and superannuation contributions, these will also need to be taken into account for the assessment of your loss of earning/earning capacity assessment.
Pursuing a common law claim does not impact your ability to continue to claim medical, like and rehabilitation expenses.
For those wishing to pursue a Common Law claim against a Comcare employer, any claim is limited to Pain and Suffering Damages only. The legislation imposes a cap, that does not enable you to receive any more than $110,000 irrespective of the severity of your injury.
In order to be eligible to pursue Common Law damages you must firstly establish that your have a right to permanent impairment benefits. This is an assessment under medical guidelines developed by Comcare. You will need to show that your impairment rating is 10% or greater. If you have an entitlement to a permanent impairment benefit, you will be required to make an irrevocable election to either accept that amount or reject and pursue a common law claim.
You will need to establish that your injury has occurred by virtue of the Negligence of your employer or third party. If your claim is against a third party there may be further criteria to consider pursuant to the state public liability laws.
We can help
Workcover/Comcare can sometimes be a difficult and stressful process. There are normally strict time limits which exist in commencing claims or disputing decisions which have been made. It is important to receive prompt legal advice so your interests can be protected.
Contact us for more information or for legal advice specific to your situation.