The Law Handbook 2024

950 Section 10: Accidents, insurance and compensation The right to obtain common law damages in respect of a workers compensation injury is vastly different, depending on when the worker was injured. Injuries before 1 July 2014 Legal advice should be sought for such claims. Injuries on or after 1 July 2014 Damages can be obtained if the injury is a ‘serious injury’. See generally sections 324–328 and 335 of the WIRC Act. A worker must generally wait for 18 months after an injury before applying for a ‘serious injury’ certificate, although special provisions (s 357) allow terminally ill workers to have their claims for damages heard speedily. In particular, an injury (excluding any reactive psychiatric or psychological injury) is deemed to be ‘serious’ if permanent impairment is more than 30 per cent under the AMA Guides (4th edn) (see ‘Non-economic loss (impairment benefit)’, above). Otherwise, pursuant to section 325(1), ‘serious injury’ means: • permanent serious impairment or loss of body function; • permanent serious disfigurement; • permanent severe mental or permanent severe behavioural disturbances or disorder; or • loss of a foetus. A claim cannot be made for damages for loss of earning capacity unless there is a loss of earning capacity of 40 per cent or more. This is the case unless the injury is ‘deemed serious’, which is 30 per cent permanent impairment. A worker can choose to claim damages for either pain and suffering or loss of earning capacity, or both. However, if a worker claims compensation for the relevant injuries under the lump sum provisions of sections 211–221, then no claim can be made for damages for pain and suffering for these injuries (s 328(3)) until the lump sum claim is concluded. There are also minimum and maximum limits on the award of damages: • monetary loss damages can only be awarded between the sums of $72820 and $1639480; • pain and suffering damages can only be awarded between the sums of $70320 and $713780; • damages for wrongful death (s 135C) can be awarded to a maximum of $1152040. Seek legal advice It is important that legal advice be sought if a worker believes they may have a claim for damages for an injury. (See Chapter 2.4: Legal services that can help.) The legislation covering this area is very technical and rigorous as to time requirements. Generally, court proceedings should be issued within six years of the date of injury, or after that time if a court allows. Also, the legislation has been, and will continue to be, subject to interpretation by the courts from time to time. If damages are obtained but they are less than the above minimum amounts for injuries, then each side must bear its own costs. There are also other provisions covering such matters as the amount of costs that can be awarded and the right of a solicitor to charge their own clients costs as well. Generally, once the proceedings for damages are finalised, a worker will not be able to make any further claims save for medical and like expenses (see ‘Medical and like expenses’, above). Pecuniary or monetary loss damages will not include any claim for medical and like expenses. When assessing damages, benefits received to date, by way of either weekly payments or other benefits, will be taken into account. There are limitations on the amount of legal costs paid on successful serious injury applications. Contacts Workers Compensation Independent Review Service (WCIRS) Web: www.worksafe.vic.gov.au/workers-compensation- independent-review-service-wcirs Tel: 4243 7061 WCIRS can review many workers compensation decisions by WorkSafe that are disputed by a claimant.