Workers compensation

WorkSafe Victoria oversees workers compensation in Victoria. Authorised agents administer parts of the scheme and some large employers are self-insurers. The Victorian Ombudsman can investigate disputed claims. The Magistrates’ Court now hears most cases. Workers can claim for work-related illnesses, injuries or diseases. Special provisions relate to injuries during journeys and breaks. Misconduct, disobedience and self-injury can affect claims.

Introduction

The administration of workers compensation in Victoria is generally handled by the Victorian WorkCover Authority (“the Authority”) (also known as WorkSafe Victoria), which has the ultimate responsibility for workers compensation in Victoria. However, a number of private insurance companies known as “authorised agents” administer the scheme on a day-to-day basis, and some large employers have been permitted to be self-insurers, rather than taking out workers compensation insurance policies with the Authority.

A person who has made a claim for compensation can request the Authority, self-insurer or authorised agent to supply any information they hold that is relevant to that claim (s 9). There are similar provisions to these in the Freedom of Information Act 1982 (Vic) (see Freedom of Information law), including which documents are exempt from being provided.

The Victorian Ombudsman (see Taking a problem to the Ombudsman) can enquire into or investigate any administrative action of any authorised agent or self-insurer in relation to workers compensation matters (including any decision or failure to act).

Almost all disputed workers compensation matters will be heard in the County Court or the Magistrates’ Court (both of which are referred to here as “the court”) (see ss 39–41). However, because of costs penalties, most workers compensation claims will be heard in the Magistrates’ Court.

From 5 April 2010 the Magistrates’ Court has the same jurisdiction as the County Court to consider any workers compensation matter, except for applications for a serious injury certificate for common law damages (ss 267, 335(2)(d)). A Magistrates’ Court can also hear disputed matters arising out of a request for information about a claim for compensation.

This chapter attempts to summarise some basic provisions relevant to workers compensation claims and does not cover all legislation relevant to this topic.

Who is covered?

The Act states that workers are entitled to benefits. (“Worker” is broadly defined in section 3 of the Act.) In deciding whether a claimant is a worker, the court will consider all relevant factors in the alleged employment, such as the nature of the remuneration and the degree of control exercised by the alleged employer. A written agreement between the parties setting out the nature of their relationship is not conclusive as to whether a claimant is a worker or not.

People employed by their family business or company may also be covered by the Act. In addition, the Act covers specific occupations such as taxi drivers, timber contractors and certain other types of contractors.

The Act specifically excludes certain occupations, such as professional sportspeople and certain types of share farming (see generally schedule 1, clauses 12, 17).

What illnesses, injuries or diseases are covered?

Section 39(1) of the Act states that:

If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

The term “employment” referred to above includes, within the Act, travelling or other specified breaks (discussed below).

As long as the personal injury happens during work or during a specified journey or break, or is caused to a worker by the nature of the work, it may be covered by the Act.

Section 3 defines “injury” as “any physical or mental injury” and includes industrial deafness, as well as:

  • a disease contracted by a worker in the course of the employment, whether at or away from the place of employment; and
  • a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

If an injury occurs at work, then there is generally a valid workers compensation claim. However, for a “heart attack injury” or “stroke injury” disease contracted in the course of employment and the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, it will always be necessary to show that employment was a “significant contributing factor” to the injury (s 40(3)). The phrase “significant contributing factor” is defined in schedule 1, clause 25 of the Act. To determine this, a number of factors are taken into account, such as the duration and particular tasks of the employment, hereditary factors and the probability that the injury would have occurred outside the employment.

The term “disease” referred to above includes any physical or mental ailments, disorder, defect or morbid condition whether of sudden or gradual development. It also includes the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing disease. For example, there is a valid claim if a worker falls and breaks a leg at work. However, if a worker suffers a heart attack at home, and if the nature of the employment or incidents in the course of the employment has contributed to high blood pressure or heart disease, there may also be a successful claim for workers compensation, even though the eventual heart attack happened at home. A large number of different illnesses, injuries and diseases have been covered by way of workers compensation, including heart disease, various types of cancer, the removal of gallstones, polio and varicose veins.

Providing that there is the necessary link with the employment, there is no real limit to the nature of illnesses, injuries or diseases that can be covered by way of workers compensation.

Industrial diseases

In general, all “diseases” may be the subject of a workers compensation claim provided there is the necessary link with the employment. The Authority, a union or a solicitor has details of specific diseases, and corresponding occupations or industries in which these diseases commonly arise; for example, silicosis (any occupation involving silica dust) and brucellosis (meat industry). If a worker is suffering from one of the listed diseases and the worker has worked in the appropriate occupation or industry, then it will be presumed that the disease has been contracted in that occupation or industry. Therefore, to avoid paying compensation, the employer or the Authority must try to prove that the disease was not contracted in that occupation or industry.

A worker who does not have one of the listed diseases or who has not worked in one of the appropriate occupations or industries must prove that there is a connection between the disease and the employment. The industrial disease provisions are set out in sections 50 and 51 of the Act.

Journey and break provisions

Section 46 of the Act specifies that an injury be covered for workers compensation purposes if it occurs while the worker is:

  • away from the workplace during any authorised recess, lunch break or smoko, if they have been at the place of employment on that day and do not subject themself to any abnormal risk of injury;
  • actually at a technical, training or trade school as part of the employment;
  • at any place to get treatment for or obtain a certificate for a work-related injury or if being examined by an insurance company or Authority doctor; or
  • travelling for the purposes of the worker’s employment, except for travelling from the place of residence to one of the places referred to in the above paragraphs.

An injury incurred during or after a substantial interruption or deviation is not covered by the Act. However, the break in the journey must have been a substantial interruption or deviation. For instance, the fact that a worker may go to a hotel for a few drinks does not necessarily mean that any rights to compensation are lost because of the “deviation” to the hotel.

Misconduct

If a worker is injured as a result of misconduct or disobedience of a regulation or without the employer’s instructions to do a particular task, there may still be an entitlement to workers compensation benefits, provided that “such act was done by the worker for the purposes of and in connection with the employer’s trade or business” (s 46(2)(d)) However, if the worker is injured as a result of serious and wilful misconduct, there is no entitlement to workers compensation benefits unless the injury results in death or “severe injury” (s 40(5),(6))

Compensation is also not payable in respect of a stress-related illness or disorder of the mind where the stress wholly or predominantly resulted from “management action” (or an expectation of such) taken on reasonable grounds and in a reasonable manner. Management action includes such matters as counselling, transfer or dismissal (see s 40(1)).

A worker driving a motor vehicle and injured in a transport accident may not be entitled to compensation or may have any weekly payments reduced if convicted of drug-driving or a drink-driving offence. However, those provisions do not apply where there is death or “serious injury”, or the Authority or self-insurer (or court) is satisfied that the presence of drugs or alcohol did not contribute in any way to the injury (ss 42–45).

No compensation is payable where the injury was deliberately self-inflicted (s 40(4)). (See alsoJourney and break provisions”.)