Work injuries in Victoria involve two schemes of compensation, one involving no fault benefits and the other involving claims in negligence.

A claim is commenced by serving a claim form on the employer. If the claim is for loss of income, it should be accompanied by a medical certificate. A certificate must certify incapacity for work and the type of injury.

The authority or insurer must decide to accept or reject the claim for weekly payments within 28 days of receiving the claim. If this is not done within 28 days, the claim is deemed to be admitted and weekly payments must commence.

If the claim is rejected the worker must be given written notice and the reasons for the decision. If the matter is contested by the employer, the (matter ..Ed.) must be referred to conciliation. If the matter does not settle at conciliation, it may proceed to Court.

To make a claim, the worker must have sustained an injury in which the worker’s employment was a "significant contributing factor" to the injury suffered by the worker.

In relation to loss of earnings payments in the first 13 weeks, weekly payments of 95% of the pre-injury average weekly earnings to a total of $884.00 (where there is no current work capacity) is paid. Where there is a current work capacity the worker will receive this amount less any notional earnings earned by him. In the second entitlement period from 14^th to 104^th week, where the worker has no current work capacity, he will receive 75% of his pre-injury average weekly earnings to a total of $884.00. Where there is a current work capacity, he will receive 60% average weekly earnings less any notional earnings to earn a maximum of $530.00 a week. To continue to receive these payments, the worker must make every reasonable effort to return to work and/or participate in an approved rehabilitation program suggested or proposed by the authorised insurer.

After the 104^th week, where there is no current work capacity and no prospective work capacity, the worker will receive 75% of pre-injury average weekly earnings to a maximum of $884.00 a week.

If a worker is injured in compensable circumstances at work, he is entitled to payment or reimbursement of medical and related expenses. The expenses covered by the Act cover such items as medical, hospital, ambulance, chemist, nursing and travelling expenses, artificial medical aids as well as treatment by registered chiropractors and osteopaths. An amount is payable for the reasonable costs of any medical report or certificate required by the worker or the worker’s legal representative. Normally under the Workcover scheme the authority or self insurer will generally not be liable to pay medical expenses after a period of 52 weeks from when weekly payments of compensation cease except in certain circumstances.

Any worker injured on after 12 November 1997 may be entitled to a lump sum pursuant to section 98C or if there is a total loss, section 98E of the Accident Compensation Act. Compensation under section 98C is calculated by using the American Medical Guides, (4^th Edition) or in cases of psychiatric impairment, the "Clinical Guidelines to the Rating of Psychiatric impairment". Compensation is not payable under section 98C for secondary or consequential psychiatric impairment as a result of physical impairment. Only primary psychiatric injuries are covered, i.e. where a worker suffers a psychiatric injury as a result of a specific incident. It is worth noting that claims pursuant to section 98C must be above the minimum threshold of 30% in psychiatric cases and 10% in non-psychiatric cases. The amount of compensation varies according to the percentage of impairment pursuant to section 98. The maximum payable on or after 12 November 1997 is $300,000.00 for section 98C and $167,850.00 for section 98E.

A worker injured under this part of the scheme will have to make his claim pursuant to a table of Maims which covers general injury to the body together with loss of sight and hearing and loss of mental papers (powers? …Ed.) involving inability to work. In addition the Act allows a lump sum to be paid where there is quadriplegia, paraplegia on impairment to back, neck and pelvis. The respective amounts of compensation for such injuries are set out in the tables in the Act. The amounts vary according to when the injury was suffered and the loss can be either total or partial.

Under the Act notice of any injury must be given by the worker or person on behalf of the worker within 30 days after the worker or that other person becomes aware of the injury. Notice of injury is deemed to be given to an employer if particulars of the injury are entered into the registrar of injuries or injury book at each place of employment. The employer must acknowledge in writing the giving of a notice of injury.

A worker who is injured in certain circumstances can sue the employer where the accident involves negligence of the employer. The employer may be liable for common law damages. Prior to November 1997, a common law claim can only brought if you could show a serious injury as defined within the Act or show a 30% minimum impairment pursuant to the American Medical Guides to permanent impairment. After 12 November 1997, new strict guidelines in relation to bringing the common law claims must be adhered to. A worker injured between 12 November 1997 and 19 October 1999 has no common law rights because of the amendments made by the Kennett Government in 1997. However for workers injured on or after 20 October 1999, the Brack’s government has restored common law rights and common law claims, in certain circumstances, can be brought after that date. If you believe you have a common law claim you should consult a solicitor because the changes to the common law are rather complex.

Solicitors can assist in processing claims by assisting workers in relation to filing out their claim forms and ensuring that they maximise their entitlements. We can also help you in deciding whether to go ahead with a common law claim.

If you believe that Workcover have made a decision concerning your claim which is incorrect or inadequately assessed your claim generally, please contact Phillip Cottier of Grice & Grice to discuss how we may be able to assist you in processing your case. We are also experienced in processing common law claims.

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