[DATE]
[CLIENT ADDRESS]
Dear (Client name),
Re:
YOUR WORKCOVER CLAIM
We refer to the above matter and to your recent meeting with (name of solicitor).
This letter is a general advice letter in relation to your rights under the Accident Compensation Act 1985 (Vic).
We also recommend you forward to us a copy of all letters which you received from the WorkCover insurer and
employer in relation to your matter so that we can ensure that your entitlements are protected and maximised.
If you have any difficulties in relation to your entitlements then please contact this office
WEEKLY PAYMENTS OF COMPENSATION
If you cannot do any work you are entitled to:
1.
For the first 13 weeks:
95% of your pre-injury average weekly earnings to a statutory maximum.
“Pre-injury Average Weekly Earnings” means your average base weekly earnings during the 12 months
preceding your injury, or if employed for less than 12 months, the average weekly earnings for that
period.
2.
For 14 weeks to 130 weeks:
80% of your pre-injury average weekly earnings, to a maximum statutory maximum
3.
For the first 52 weeks:
Shift allowance and overtime are included if applicable, to pre-injury average weekly earnings for the
first year.
4.
Post 130 weeks.
80% of your pre-injury average weekly earnings, to a maximum statutory maximum, provided you are
assessed has having:
a.
No current work capacity; and
b.
Likely to continue indefinitely to have no current work capacity.
Assuming there is no change to your capacity, weekly payments would continue until the federal
retirement age.
If you have a capacity to undertake some work you are entitled:
1.
For the first 13 weeks:
95% of your pre-injury average weekly earnings, to a statutory maximum, less current weekly earnings.
OR
If you have not been offered light/alternative duties, 95% of your pre-injury earnings to a statutory
maximum.
2.
For 14 weeks to 130 weeks:
If you have returned to work, 80% of your pre-injury average earnings to a statutory maximum, less
current weekly earnings.
OR
If you have not been offered light/alternative duties, 80% of your pre-injury earnings to a statutory
maximum.
3.
For the first 52 weeks:
Shift allowance and overtime are included if applicable, to pre-injury average
weekly earnings for the first year.
All weekly payments are dependent upon you:
a.
Making reasonable efforts to participate in rehabilitation and accepting reasonable offers from the
employer to return to work in suitable employment if certified fit by your treating doctor;
b.
Attending the insurer’s doctors and/or rehabilitation providers for assessments.
COMPENSATION FOR MEDICAL AND LIKE EXPENSES
The WorkCover insurer must meet the reasonable cost of your medical treatment including but not limited to
doctor and specialist appointments, physiotherapy/hydrotherapy, medication, travel to medical appointments,
inpatient hospital care, surgery, radiological investigations, rehabilitation, nursing and home help. If you are in
receipt of weekly payments and those payments cease, the insurer is only obligated to meet expenses for a
further 52 weeks except if you require surgery, require treatment to remain at work or the medical service is
essential to you undertaking the necessary activities of daily living.
If the insurer refused to pay an expense which you thought was properly incurred then you are able to have the
decision reviewed by way of conciliation application (see below) and ultimately by way of an application to the
Magistrates’ Court.
LUMP SUM COMPENSATION FOR AN INJURY WHICH CAUSES A PERMANENT IMPAIRMENT
If as a result of an injury you have sustained a permanent impairment to the whole body of 10% or more then you
are entitled to a lump sum impairment benefit.
Impairment is assessed in accordance with an American Medical publication known as the AMA Guides Fourth
Edition. It generally cannot be assessed until at least 12 months from the date of injury, and only if your injury
has stabilised.
Acceptance of an award of compensation for permanent injury does not affect any ongoing entitlement to weekly
payments or payment of medical and like expenses.
If you have sustained the total loss of a bodily part, lump sum compensation may be available, even if the whole
body impairment is less than the 10% threshold.
Lump sum compensation is still available at common law for a serious injury even if there is no impairment
entitlement.
RESOLUTION OF DISPUTES
The insurer may make a decision in relation to your entitlements which you disagree with, for example:
To reduce weekly payments on the basis that you have a current work capacity when you do not;

To terminate your weekly payments;

To fail to pay or to agree to meet the cost of specific medical, hospital, nursing or rehabilitation
expenses;

To deny liability for a body part for your claim for impairment benefits.
In cases where the insurer makes a decision which you dispute (or fails to make a decision) we can lodge a
Request for Conciliation on your behalf. If still dissatisfied at the conclusion of the conciliation process we may
refer the dispute to a Medical Panel or commence Court proceedings.
CONCILIATION PROCESS
If you are dissatisfied with any decision made by the insurer then you can seek to have the decision reviewed by
way of an application to the Conciliation Service within 60 days of making the decision. In certain circumstances a
Conciliation Application can be lodged outside 60 days if there is a good reason for late lodgement. The
Application is made on a prescribed form which can be obtained direct from our office.
Generally a representative from our office would assist you at a Conciliation conference.
A Conciliation Officer will be appointed to review your case.
The Conciliator is an impartial person whose function is to assist you to resolve the dispute with the insurer. In
some cases the Conciliator can, with your consent, issue a binding direction on the WorkCover insurer.
Generally, the Conciliation Officer will arrange a meeting between yourself and the insurer within one month of
lodgement of the application.
The Conciliation Officer may suggest a referral to a Medical Panel for an opinion. Careful consideration should be
given as to whether to consent to such a referral as any decision made on your claim by the Medical Panel is final
and binding and cannot, except in rare circumstances, be reviewed by the Court.
At the conclusion of the process the Conciliation Officer may make recommendations or make no
recommendation on the basis that there is a genuine dispute. If this occurs it may be appropriate to consider an
appeal of the insurer’s decision to the Medical Panel or the Magistrates’ Court. Alternatively, the Conciliator may
suggest an agreement to resolve the dispute. No decision should be made at Conciliation without legal advice.
LUMP SUM COMPENSATION FOR SERIOUS INJURY (COMMON LAW)
For any injuries suffered after 20 October 1999 (including the aggravation, acceleration, exacerbation or
deterioration of any pre-existing injury or disease), a common law claim for lump sum compensation for serious
injury can be made, but it must be 18 months after the date of injury, and only if the injury is permanent and
stable.
If your impairment was determined by the WorkCover insurer at 30% or more than you are deemed to have
sustained a “serious injury” which would enable you to recover lump sum compensation if you were hurt as a
result of the negligence of your employer or another party.
In most cases, Common Law proceedings are commenced with an impairment of less than 30%, if WorkSafe or the
WorkCover self-insurer, or failing this, the Court, is satisfied that the injury is serious. To be classified as a serious
injury there must be permanent impairment or loss of a body function which is more than significant or marked
and at least very considerable in terms of causing long term pain and suffering and/or loss of earning capacity. A
serious injury certificate can also be given for loss of a foetus, permanent serious disfigurement, or permanent
severe mental disturbance.
A loss of earning capacity will not give rise to a serious injury unless you have sustained a 40% loss of earning
capacity from the date of accident to date of serious injury determination , and will continue permanently in the
future to have a loss of earning capacity of 40% or more. Your suitability for all forms of employment is
considered when assessing your earning capacity.
You must prove that you have undertaken all suitable rehabilitation and retraining and made all attempts to
resume alternative work.
If the injury occurred as a result of a car accident in the course of employment, then your rights to bring a
common law claim, if governed by Victorian law, would be regulated by the Transport Accident Act.
Common law proceedings, with some exceptions, must be issued within 6 years from the date of accident, failing
which you are barred forever from pursuing a claim.
Please advise this office if you change your address and do not hesitate to call should you have any further
queries.
Yours Faithfully