An injured worker is entitled to claim WorkCover common law damages for pain and suffering and economic loss provided they:
- meet the 'serious injury' threshold; and
- can prove negligence of another person in causing their injuries.
A 'serious injury' certificate must be granted before an injured worker can claim common law damages. Common law damages are in addition to an injured worker's statutory entitlements under the WorkCover scheme, like weekly payments and medical expenses.
WHAT IS A WORKCOVER 'SERIOUS INJURY'?
A 'serious injury', for a WorkCover common law claim, can be a physical injury, psychological injury, scarring or disfigurement or loss of a foetus.
There are 3 tests for 'serious injury'. If you satisfy one or more of these tests, you will have a 'serious injury'.
- The first test is if you are assessed as having a 30% or more impairment.
This must be determined by an independent medical examiner qualified in assessing injured workers under the American Medical Association Guidelines 4th edition. The assessed percentage is based on impairment to functional abilities of the affected body parts.
- The second test is the narrative test.
This test considers the consequences of the injury on an injured person's life. For example, the consequences on a person's ability to perform activities of daily living, ability to engage in recreational and social pursuits that the injured person used to enjoy prior to the injury, etc.
- The third test is the loss of earning capacity test.
This test considers whether the injured worker has permanently lost the ability to earn 60% or more of their pre-injury earnings. Consider the example of a surgeon who earns an average of $200,000 per year and injures their hand at work. They can no longer work as a surgeon but now perform administrative or consulting work which earns them less than $110,000 per year. The new annual income is only 55% of their original earning capacity.
HOW DO I KNOW WHETHER MY WORKPLACE INJURY IS A 'SERIOUS INJURY'?
If you satisfy the first test, you are automatically deemed to have a serious injury.
If you do not satisfy the first test of 30% or more impairment, until your claim is assessed and considered, there is no guarantee that you will satisfy the 'serious injury'.
The tests ultimately come down to the permanent consequences of the injury on your life. Consider what is unique about you and what you have lost as a result of the injury.
HOW DO I OBTAIN A WORKCOVER 'SERIOUS INJURY' CERTIFICATE?
You can obtain a WorkCover 'serious injury' certificate by making a serious injury application and lodging it with the Victorian WorkCover Authority. You will also need to provide a copy to your employer.
The legislation requires a response by the Victorian WorkCover Authority within 120 days of receipt of the application. If a response is not received by the 120th day, it is assumed to be accepted. If the serious injury application is rejected, an application must be made to the court for determination.
HOW DO I PREPARE FOR A WORKCOVER 'SERIOUS INJURY' APPLICATION?
A serious injury application must be accompanied by an affidavit prepared by a lawyer together with medical evidence about your injuries.
The best ways an injured worker can prepare for an application is:
- gather any awards, photographs, certificates or medals for recreational activities you used to enjoy before you were injured;
- prepare a journal of your pain and symptoms and issues you experience in doing your daily activities;
- ensure that your social media accounts are reflective of your pain and symptoms;
- collate your tax returns, payslips and financial records. If you are self-employed, collate your profit/loss and business earnings records.
WORKCOVER SERIOUS INJURY APPLICATION CASE REVIEW
In the 2023 case of Zygmunt v VWA [2023] VCC 1445, judgement was handed down in favour of the injured worker, Mr Zygmunt. In that case, the injured worker sustained an injury on 7 February 2020 whilst at work. He received a burn to his left shin as a result of a caustic soda spilling into his gumboot.
The burn had caused a scarring disfigurement to the injured worker, and the main issue in dispute was whether this scarring disfigurement constituted a 'serious injury'.
In considering whether the injured worker has a serious injury, the court considered:
- the effect on his recreational activities as a professional strongman;
- his attitude towards the appearance of the scar; and
- medical evidence supplied by his doctors and expert independent medical examiners about the prognosis of his injury and the effects it has on his day-to-day experience.
The representatives of VWA attempted to use images from the injured worker's social media and other accounts to discredit his evidence about his recreational activities and feeling self-conscious about the scarring.
Ultimately the court found in favour of the injured worker on the basis that the scarring was quite obvious when viewed physically and that aside from the subjective consequences to his life in terms of his recreational activities, the medical evidence was overwhelmingly supportive and consistent with the worker's account of his injury on his social media accounts.
Being such a young man with a permanent scar, Judge English found in favour of the injured worker.
This case outlines the importance of providing evidence of an injured worker's unique consequences and the importance of ensuring social media and other publicly available evidence of the impact of an injury, is consistent with the worker's instructions to doctors.
GET HELP FROM A WORKER'S COMPENSATION LAWYER
Evidence related to a serious injury application is best collated by the injured person who is experiencing the pain and suffering as a result of their injury(s).
All evidence can then be prepared and compiled into an application by a legal representative. An experienced worker's compensation lawyer is skilled at ensuring all legal requirements are met and at showcasing the injured worker's story and the impact of the injury on their life.
