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Workers compensation

Unless otherwise indicated, this chapter refers to injuries sustained after 4 April 2010. There may be differences in entitlement and benefits for anyone injured prior to that date. Readers should seek legal or union advice in those circumstances.

As noted in “Work Injuries” (above), since September 1985 the Accident Compensation Act 1985 (Vic) (“1985 Act”) has regulated workers compensation benefits in Victoria. All legislative references in this chapter refer to that Act unless otherwise indicated.

The Accident Compensation Amendment Act 2010 (Vic) came into operation on 5 April 2010. This Act is especially relevant to injuries occurring on or after that date. However, as with other previous amendments to workers compensation, the provisions considerably affect people injured before that date as well.

The administration of workers compensation under the 1985 Act 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 107A). There are similar provisions to these in the Freedom of Information Act 1982 (Vic) (see Chapter 21.6: Freedom of Information), including which documents are exempt from being provided.

The Victorian Ombudsman (see Chapter 21.4: 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 43, 134AB(16)(b)). 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 1985 Act states that workers are entitled to benefits. (“Worker” is broadly defined in section 5 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 ss 5, 6–16).

What illnesses, injuries or diseases are covered?

Section 82(1) of the 1985 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.

For injuries sustained after 2 December 2003, section 5(1) 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 after 2 December 2003, it will always be necessary to show that employment was a “significant contributing factor” to the injury. The phrase “significant contributing factor” is defined in section 5(1B) 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 86 and 87 of the 1985 Act.

Journey and break provisions

Section 83 of the 1985 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 paragraphs (1)–(3) above.

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 83(1)). 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 82(4), (5)).

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 82(2A)).

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 82A–82D).

No compensation is payable where the injury was deliberately self-inflicted (s 82(3)). (See also “Journey and break provisions”, above.)

Compensation benefits

The 1985 Act contemplates that four types of payments will be made:

  1. weekly payments for incapacity;
  2. benefits in respect of death;
  3. medical and like expenses; and
  4. certain lump-sum compensation, including damages.
Weekly payments

Weekly payments are payable if, as a result of an injury, a worker has “no current work capacity” or has “current work capacity” (see definitions, s 5(1)).

In general terms, a worker has “no current work capacity” if the person is unable to work in the pre-injury employment or “suitable employment”. A worker has “current work capacity” if the person is not able to return to pre-injury employment, but is able to return to work in “suitable employment”.

The Act specifies the weekly amounts that a worker is entitled to receive during periods of incapacity. It is important to note that these rates are increased on 1 July of each year and are payable to all workers who are entitled to weekly payments, no matter when the injury occurred after August 1985.

A large number of workers are entitled to receive make-up pay, being the difference between weekly payments and normal weekly wage for six months or more, depending on the conditions of employment. Legal or trade union advice should be sought on this point.

Subject to the restrictions given below, there is no fixed maximum amount of weekly payments under the 1985 Act. Payments will cease when a worker reaches the normal retiring age for the industry or occupation, or reaches the age of 65 (men and women). A worker who is injured after reaching either the normal retiring age or 65 is entitled to up to 130 weeks of payments (s 93). Compensation may also be paid for a limited period for a worker becoming incapacitated after retirement age as a result of an earlier injury (s 93EA).

Generally, an employer must provide suitable employment for a worker with a current work capacity, or the pre-injury employment for a worker who is no longer incapacitated for a period of up to 52 weeks from the start of the worker’s incapacity for work (see generally ss 190–194). The employer can be fined for failing to do this. (See also “Discriminatory conduct”, below).

Injuries prior to 5 April 2010

Legal or union advice should be sought on the present rates and entitlements to weekly payments if a worker was injured in the above period.

Pre-injury average weekly earnings (PIAWE)

Weekly payments are based on the worker’s pre-injury earnings and, where applicable, on their post-injury earnings.

Pre-injury earnings

These are defined as the worker’s “pre-injury average weekly earnings” (PIAWE) over the last 12 months, subject to some restrictions and a maximum weekly amount (s 5A). This means the base rate of pay plus piece rates/commissions, salary sacrifice amounts and any non-cash benefits such as the use of a car. Amounts paid by way of overtime and shift allowances can also be taken into account for the calculation of weekly payments for the first 52 weeks of incapacity.

Post-injury earnings

These are defined by “current weekly earnings”, which are the weekly wages, including the monetary value of any non-pecuniary benefit or advantage a worker earns during a week (s 5B).

Twice state average weekly earnings (AWE) is currently $2050.

Entitlements after 4 April 2010

The following paragraphs are applicable to workers entitled to weekly payments as a result of an injury after 4 April 2010 and are payable after 1 July 2010. Similar rates will also be paid to workers who are entitled after 4 April 2010 to weekly payments for injuries prior to 5 April 2010.

Provided the worker continues to have some incapacity for work and complies with the other provisions of the Act, generally there will be an entitlement of up to 130 weeks. However, those weekly payments may continue in some circumstances (see “After the second entitlement period ss 93C, 93CA, 93CD, 93CE”, below).

First entitlement period (s 93A)

The first 13 weekly payments are:

  • No current work capacity:
    95% of PIAWE or twice AWE, whichever is the lesser
  • With a current work capacity:
    As above less current weekly earnings
Second entitlement period (s 93B)

The weekly payments from the 14th up to and including the 130th week are:

  • No current work capacity:
    80% of PIAWE or twice AWE, whichever is the lesser
  • With a current work capacity:
    80% of the difference between PIAWE and current weekly earnings or the difference between twice AWE and current weekly earnings, whichever is lesser. If the worker has not returned to work, 80% of PIAWE to a maximum of twice AWE.
After the second entitlement period (ss 93C, 93CA, 93CD, 93CE)

After 130 weeks of weekly payments, payments can be terminated if the worker has a “current work capacity” or is not likely to indefinitely have “no current work capacity”. Until a formal Notice is served terminating those payments, the worker continues to receive weekly payments.

If the issue is decided in favour of the worker, weekly payments continue to be paid at the following rate:

  • No current work capacity and no prospective work capacity (s 93C):
    80% of PIAWE or twice AWE, whichever is the lesser

However, even if the worker does have a current work capacity, weekly payments may continue to be paid in the following circumstances.

  • Incapacity arising from surgery after expiry of second entitlement period (s 93CA):
    A worker requiring surgery may in certain circumstances receive up to 13 weeks weekly payments although weekly payments may have previously ceased.
  • Currently employed for at least 15 hours per week, earning at least $177 per week, and likely to continue indefinitely to undertake further or additional paid work (s 93CD):
    80% of the difference between PIAWE and current weekly earnings or the difference between twice AWE and current weekly earnings, whichever is the lesser
  • Other entitlements (s 93CE):
    A worker injured after 4 April 2010 will also be entitled to compensation in the form of superannuation contributions after 52 weeks of entitlement to, or payment of, weekly payments.
Termination of weekly payments

In order to continue to receive weekly payments, a worker must:

  • participate in approved rehabilitation and vocational re-education programs;
  • make every effort to return to work in suitable employment; and
  • participate in assessments of incapacity, rehabilitation progress and future employment prospects as required.

If this is not done, weekly payments may be suspended or terminated (see generally ss 200–206).

Under the 1985 Act, a worker receiving weekly payments of compensation can have those payments stopped or altered by the Authority or a self-insurer if the worker:

  • has returned to work (s 114). However, there may still be a right to payments if there is a continuing loss of wages due to the effects of the injury; or
  • “ceases to reside” in Australia (s 97). However, merely going overseas for a short time on holiday does not mean that the worker “ceases to reside” in Australia.

A worker’s right to receive weekly payments may be suspended or terminated if the worker:

  • fails to provide continuing certificates as to incapacity as well as a prescribed declaration as to employment every 28 days or within such extra time as the Authority or self-insurer allows (s 111); or
  • is serving a sentence of imprisonment (s 97(7)).

Under section 114, the Authority or self-insurer can give a notice to the worker that weekly payments will be reduced or terminated. The period of such notice depends on the length of time that a worker has been receiving weekly payments of compensation for a continuous period. If this period is less than 12 weeks, notice can be given immediately. If it is between 12 weeks and one year, 14 days notice is required. Weekly payments made for one year or more require a period of notice of 28 days. However, 13 weeks notice is required where the sole ground of termination is the expiry of the second entitlement period.

If payments are being made under section 93CA, these will cease automatically at the end of the 13 week period or when incapacity from the surgery ceases, whichever occurs first.

A notice of reduction or termination of weekly payments may be given according to section 114 if it is considered that:

  • there is not or no longer an entitlement to weekly payments of the existing amount, or any amount at all; or
  • the worker’s current weekly earnings alters.

For procedures beyond this stage, see “Procedure in contested claims”, below.

Discriminatory conduct

It is a criminal offence for an employer or prospective employer to engage in discriminatory conduct for a prohibited reason (s 242AA). “Discriminatory conduct” includes dismissing, altering the position of, treating a worker less favourably, or refusing employment.

Discriminatory conduct is for a “prohibited reason” if the dominant reason is that a worker has given notice of injury or made or pursued a claim for compensation.

If an employer or prospective employer is convicted or found guilty of an offence against section 242AA, then a court may award damages, or up to 12 months remuneration, or order reinstatement or that the worker be given employment.

Alternatively, a worker or prospective worker can apply to the Industrial Division of the Magistrates’ Court for similar orders if there has been discriminatory conduct for a prohibited reason.

An employer or prospective employer has a number of possible defences to all of the above proceedings. Such defences include compliance with the Occupational Health and Safety Act 2004 (Vic), the worker being unable to perform the “inherent requirements” of the adjusted employment, and the worker engaging in a fraudulent or dishonest claim.

Claims by dependants and non-dependants of deceased workers

The 1985 Act gives an entitlement to workers compensation where death results from, or is materially contributed to by, injury (s 92). An injury that results in death must come within the definition of compensable injury discussed at “What illnesses, injuries or diseases are covered?”, above.

If the death occurred after 11 November 1997, compensation is paid under sections 92A, 92B and 92C. Note that this section refers to such deaths unless otherwise indicated.

Dependency

The Act states that people who are wholly or mainly dependent upon the deceased worker’s earnings are entitled to compensation. People who actually depended on the deceased worker’s earnings are dependants within the meaning of the Act. A spouse/partner who resided with the worker at the time of death is deemed to be dependant on the worker’s earnings at the time of death. The Act refers to “dependant partner”, which is defined as including a “spouse or domestic partner”.

In determining whether a partner was dependent on the deceased worker’s earnings at the time of death, the Act states that no regard shall be had to any money that the partner was earning by way of personal exertion or to any savings arising from such earnings. The Act makes no real distinction between a de facto partner and a married person, or whether the partner is male or female.

The rates depend on when the death occurred. The amounts listed in the sections below are payable where a worker leaves at least one person wholly or mainly dependent upon the worker’s earnings at the time of death or who would have been so dependent if not for the incapacity of the worker prior to the worker’s death. That person must be a wholly or mainly dependent partner or wholly, mainly or partly dependent child.

Benefits

Lump sums and weekly pensions are paid to dependent partners (which include a spouse) and children. Specific allowance is made for the situation where there may be more than one dependent partner (e.g. where a worker is separated from a partner and living in a de facto relationship). Such partners will generally share the death benefit equally.

The amount of the lump sum depends on whether there is a dependent partner(s) and the number of dependent children. There is a maximum amount payable of $499,810 to a single dependent partner with a single dependent child receiving $55,530, where the death is after 1 July 2013. Legal or union advice should be sought for the appropriate rates prior to that date.

A weekly pension is also paid to a dependent partner for the period of three years after the worker’s death (a larger amount is paid in the first 13 weeks). In addition, a dependent child will receive a pension until 16 years old or, if a full-time student at 16 years old until reaching the age of 25 or ceasing to be a full-time student or apprentice, whichever occurs first. The amount of the pension will depend on such matters as the worker’s PIAWE and the number of dependent children.

Other provisions

Of course, these rates are maximum amounts payable where liability is admitted by the Authority or self-insurer or where the court has ordered that compensation be paid after hearing all the evidence. Where liability is denied, the parties can agree that a lesser amount be paid, subject to the approval of the court. This amount is to reflect the difficulties the applicant may have in proving the case.

Where there are only partial dependants and nobody wholly or mainly dependent at the time of death, the court assesses an appropriate proportion of the above amounts where applicable, depending on the extent of partial dependency on the earnings of the deceased.

If a worker under 21 years old leaves no dependants but was contributing towards the maintenance of the family home, the other members of the family are deemed to be partial dependants.

In addition to the above amounts, there is a benefit payable towards the deceased’s funeral and other burial expenses up to certain amounts. Under the Act, the “reasonable” costs of funeral and other burial expenses are payable. Also, an amount of up to $5,870 can be paid for family counselling expenses.

A lump sum payable to a dependent child is paid to a trustee (who may be a parent of the child) to be appointed by the court, to be invested or dealt with on behalf of the child. If a dependent child requires certain amounts from the trustee for purposes such as the purchase of furniture, a house, a car or the payment of bills etc., a request for payment must be made to the trustee. In most cases (if the proposed expenditure is considered reasonable), the trustee should make payment out of the money held on behalf of the dependent child.

Claims by non-dependent family members (s 92AA)

For deaths after 4 April 2010, if there are no dependants of a deceased worker at the time of death, then non-dependant family members can make a claim for expenses where there is financial hardship. For deaths after 1 July 2013 an amount of up to $33,120 may be paid for such expenses incurred as a result of the worker’s death. Such claims are very limited and must be made to the Magistrates’ Court.

Provisional Payments (s 92D)

In certain circumstances for deaths after 4 April 2010, provisional payments may be made to the dependants of a deceased worker before a claim has been accepted. These payments can be made for such expenses as funeral costs, medical costs, counselling and a weekly pension. For deaths after 1 July 2013 the maximum provisional payment is $8,270.

Deaths prior to 12 November 1997

Legal or union advice should be sought if a worker died prior to 12 November 1997 as a result of a work-related injury. Benefits in such cases are limited to a lump sum. No pension is payable.

Medical and like expenses

A worker injured in compensable circumstances, whether or not the injury results in time off work, is entitled to payment or reimbursement of reasonable medical and other related expenses. The types of such expenses covered by the 1985 Act are set out in section 99 and cover such items as medical, hospital, ambulance, chemist, nursing and travelling expenses, artificial medical aids, as well as treatment by registered chiropractors and osteopaths. Counselling benefits up to $5,870 (as set out above) are payable to the family members of a “severely” injured worker where there is immediate hospital inpatient treatment or the worker dies from the injuries.

Other claims can include personal household and occupational rehabilitation expenses such as home help, gardening, and car and home modifications.

Note that the above list is by no means complete and a careful reading of the provisions is recommended.

The worker is allowed to consult doctors of their own choice, whether for treatment or for giving evidence to the court. The worker must, however, submit to examination by doctors nominated by the employer, insurance company or the Authority without any expense to the worker (s 116).

The Act states that the expenses must be “reasonable”; that is, they must be reasonable as to the amount of expense, and to the necessity and frequency of treatment.

The liability for payment continues while the injured worker suffers from the effects of the injury, whether there is a return to work or not.

Under all WorkCover schemes, the Authority or self-insurer will generally not be liable for payment of medical expenses after a period of 52 weeks from when weekly payments of compensation cease, except in certain specified circumstances (s 99(14)). A 28-day Notice must be given prior to such a termination.

Lump sums, redemptions and settlements

There are very limited rights for an injured worker to obtain a lump sum under the 1985 Act.

Table of Maims

A worker injured prior to 12 November 1997 may be entitled to a lump sum under section 98 or 98A of the 1985 Act. Legal or union advice should be sought on the rates and entitlements to benefits under those provisions.

A worker injured on or after 12 November 1997 may be entitled to a lump sum under section 98C or (if there is a “total loss”) section 98E. The latter section provides minimum amounts of compensation for total loss that are paid if a worker is entitled to receive a lower amount for total loss under section 98C.

The types of injuries covered by the Table of Maims are set out in the above sections. Injuries such as spinal injuries, limb injuries and loss of senses including hearing and sight are covered. Legal advice should be sought as to the types of injuries that are included in the Table of Maims. However, any partial loss or impairment, severe facial disfigurement or severe bodily disfigurement is not covered by section 98E.

Compensation under section 98C is calculated by using the 4th edition of the American Medical Association Guides (“AMA Guides (4th edn)”). However, specific guidelines are specified for the assessment of psychiatric impairment, occupational asthma impairment and infectious occupational disease impairment. Compensation is not payable under section 98C for secondary or consequential psychiatric impairment (e.g. as a result of a physical injury). Only “primary psychiatric” injuries are covered (e.g. where a worker suffers a psychiatric injury as a result of a specific incident, such as an explosion).

The distinction between “primary” and “secondary” psychiatric injuries is a complex one. It is important that legal advice be sought on this point, if appropriate.

Claims under section 98C generally must be above the minimum threshold of 30% in psychiatric cases and 10% in non-psychiatric cases. For injuries after 2 December 2003 the minimum threshold can be as low as 5% for musculoskeletal injuries. The amount of compensation varies according to the percentage degree of impairment under section 98C and certain prescribed amounts for nominated injuries in section 98E. The maximum amount payable for injuries on or after 1 July 2013 is $555,350 for section 98C and $273,640 for section 98E.

Settling a claim outside court

A worker and the self-insurer or the Authority may agree to “settle” a compensation claim outside the court.

In addition, the Act allows for a binding settlement to be made at a conciliation hearing at the Accident Compensation Conciliation Service, which can issue an “outcome certificate” (s 57(5)). A worker should not make such an agreement without obtaining proper legal advice.

The amount of settlement will depend on a number of factors in any particular case; for example, doubts on the relationship between the injury and the employment and differing medical opinions on capacity to work or length of incapacity.

Any claim arising out of the death of a worker in which a dependant is not legally represented or is a minor or under a disability must be approved by the court (s 92A(3)).

Time limits on making a claim

Under the 1985 Act, notice of any injury must generally be given by the worker or a person on behalf of the worker within 30 days of the worker or that other person becoming aware of the injury (s 102(1)).

Notice of injury is deemed to be given to an employer if particulars of the injury are entered into the register of injuries or injury book at each place of employment. The employer must acknowledge in writing the giving of notice of an injury (s 102(3), (4)).

A claim for compensation must generally be made in the prescribed form and be given to the employer as soon as practicable after the incapacity arising from the injury becomes known (s 103). If the claim is for weekly payments, a medical certificate on the prescribed form should be given at the same time.

If a claim for compensation is made after the worker ceases to be employed by that employer, it shall be deemed not to have been made unless the claimant satisfies the Authority or self-insurer (or the court) that it could not reasonably have been made while the worker was employed by that employer (s 103(5)).

If the claim for compensation relates to an injury resulting from an accident involving a motor car, then it shall be deemed not to have been made unless a report of the accident has been made to a member of the police force (s 103(6)).

Any claim for a death benefit (ss 92, 92A, 92B)) should be made within two years of the death of the worker. In addition, any claim for medical and like expenses (s 99) should be made within six months of the date of the medical service.

The time limits for giving notice of injury and making a claim for compensation may be extended in certain cases (ss 102(6), (7), 103(8)).

Making a claim

Under the 1985 Act, a claim for compensation is commenced by serving a claim form, usually on the employer. Notice of injury and/or a claim for compensation should be given as set out above. If the claim is for weekly payments, a medical certificate in the special form prescribed by the Act must accompany the claim form. The certificate must be from a medical practitioner, and must certify incapacity for work and the nature of the injury that is the cause of that incapacity. Generally, it will certify incapacity for no more than 28 days.

It is a criminal offence for an employer to refuse to receive a claim for compensation or dismiss a worker from employment simply because the worker has given notice of, or taken steps to pursue, a claim for compensation (s 242(3)). Also, employers must forward claims for compensation to the Authority within 10 days of receiving the claim; they may face financial penalties if this is not done.

The Authority or a self-insurer must generally give written notice of a decision to accept or reject a claim for weekly payments within 28 days of receiving the claim. If this is not done within 28 days, the claim will be deemed to have been accepted and weekly payments must be commenced (s 109).

All claims for compensation must also include a medical authority, signed by the worker, allowing the Authority and others to obtain medical information from the worker’s doctors and other medical providers relevant to the worker’s claim.

New employees can be required by an employer to give details of any pre-existing injury or disease of which they are aware. If there is a failure to disclose or if false and misleading information is given, the employee will not be able to claim compensation involving that pre-existing injury or disease (s 82(7)–(9)). However, such a requirement by an employer mayinfringe Commonwealth Government anti-discrimination legislation.

A worker should not talk to investigators or accept advice other than legal or trade union advice. The rejection of liability by the employer, insurance company or the Authority does not mean that the worker does not have a valid claim.

If a claim is rejected, the worker must be given written notice of and reasons for the decision.

For procedures beyond this stage, see “Procedure in contested claims”, below.

Uninsured, bankrupt or missing employers

Every employer must take out an insurance policy to cover liabilities for workers compensation, and failure to do so is a criminal offence. If an employer does not have such a policy at the time of a worker’s injury, the worker is still protected.

Under the 1985 Act, the employer must pay workers compensation benefits for the first 10 days of incapacity, and an amount towards the worker’s reasonable medical costs. If the employer’s wage bill is very small (s 125), or if the employer is unable to or does not pay the benefits and medical costs, the Authority must assume responsibility and make these payments to the worker. This ensures that the worker receives payments and does not have to bear the loss (s 127).

Similarly, if the employer has gone bankrupt, dies, is wound up or even disappears, then the worker can apply to the Authority to pay the first five days of incapacity payments and all medical expenses (s 126).

Procedure in contested claims

All contested workers compensation matters will be heard by the court (see “Workers compensation”, at the start of this chapter).

Generally, an application can be made to the court from any decision of the Authority or the self-insurer or from any recommendation or direction of a conciliation officer. Any party to a dispute may refer the dispute for conciliation by a conciliation officer, provided this is done within 60 days of the notice of the decision being served on the worker or claimant.

Legal representation will only be allowed before a conciliation officer if all parties, including the conciliation officer, are in agreement. The conciliation officer can direct the Authority, employer or a self-insurer to pay or continue to pay compensation for up to 12 weeks at any time and/or arrears of up to 24 weeks. Similarly, a conciliation officer can direct payment of medical and like expenses up to $5,000.

If the conciliation officer believes there is a genuine dispute as to whether weekly payments should be made or continue to be made, the officer must advise the claimant of that fact and that an application can be made to the court to determine the matter.

It is compulsory for all weekly payment claims and Table of Maims claims to be referred to conciliation prior to issue in the court (s 49). A certificate must be issued by a conciliation officer prior to issue in the court (s 49), except where proceedings have already been commenced for another dispute between the parties (s 104).

Medical questions must be referred to a medical panel for decision at the request of either party at a conciliation or at court. However, the court may have to resolve any disputed “factual issues” between the parties prior to the referral.

The court and the parties are generally bound by the decision of the medical panel (s 68(4)).

There are also time limits and other procedures in dealing with Table of Maims claims for injuries after 11 November 1997 under the Act (see ss 104A, 104B), which are designed to restrict such claims being assessed by the court. The court will generally be restricted to determining questions of liability for the claim only. The quantum of the claim will generally be assessed by a medical panel, from which there will be no appeal.

All enquiries concerning conciliation should be addressed to:

Accident Compensation Conciliation Service
Level 9, 460 Lonsdale Street, Melbourne Vic 3000
Tel: 9940 1111; 1800 635 960
Email: info@conciliation.vic.gov.au
Web: www.conciliation.vic.gov.au

A worker appearing at a conciliation may be entitled to limited travelling expenses and loss of wages incurred for attendance there.

Under the Act, there is a right of appeal from a decision of the court to the Supreme Court on questions of law.

Costs

Each party before a conciliation officer must pay their own legal costs (s 62). Legal costs are also not recoverable for assisting a person to make, lodge or forward a claim for compensation or application for compensation under the 1985 Act (s 123B). The court has limited power to award costs. Except in proceedings brought by the Authority or a self-insurer, costs must be awarded against the party against whom a judgment or decision is made. If it considers appropriate, the court may award costs to the representative of a worker in whose favour a judgment or decision is made (see ss 50, 99AD). There are cost penalties to ensure that most applications will be heard in the Magistrates’ Court.

There are also cost penalties in Table of Maims claims for injuries prior to 12 November 1997 associated with the “statutory offer” and “counter statutory offer” procedure (s 104). Legal or union advice should be sought on this matter if necessary.

The costs of any appeal before the Supreme Court are in the discretion of the Supreme Court (s 51).

Subject to some minor restrictions in the Act, including those matters set out above, a solicitor can obtain costs from their own client with respect to any compensation claim.

Commonwealth employees

Anyone employed by the Commonwealth of Australia or by one of its prescribed authorities (e.g. Telstra) has similar rights to compensation (e.g. weekly payments, medical and other similar expenses, rehabilitation, household and attendant care services, death benefits, common law damages and lump sums for permanent impairment and associated non-economic loss) under the Safety, Rehabilitation and Compensation Act 1988 (Cth). This Act is similar to the Victorian 1985 Act, but there are a number of procedural differences. In all cases, under the Commonwealth Act, the employee must complete and lodge with the employer a claim form. The claim is then investigated by Comcare or, if the employer is a licensed authority (e.g. Telstra), by the licensed authority.

After considering the claim, Comcare or the licensed authority makes a determination either accepting or denying liability for the claim. If the claim is accepted, the quantum of the claim is also determined. A determination may also be made in such cases as the termination of weekly payments and rejection of a lump sum or death benefit claim.

An employee dissatisfied with any determination should request a reconsideration of the determination by Comcare or the licensed authority and if, on reconsideration, the reviewable decision affirms the determination, file an Application for Review with the Commonwealth Administrative Appeals Tribunal.

If a worker is dissatisfied with a determination, proper legal or trade union advice should be sought.

Workers compensation :: Last updated: Sun Jun 30th 2013