Introduction to workers compensation
The administration of workers compensation in Victoria is generally handled by WorkSafe Victoria (‘WorkSafe’), 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 WorkSafe.
A person who has made a claim for compensation can request WorkSafe, a self-insurer or an 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 Chapter 12.5: Freedom of information law), including which documents are exempt from being provided.
The Victorian Ombudsman (see Chapter 12.3: Taking a problem to an 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 are heard in the County Court or Magistrates’ Court (both of which are referred to in this chapter as ‘the court’) (see ss 39–41). However, because of costs penalties, most contested workers compensation claims are heard in the Magistrates’ Court.
Since 5 April 2010, the Magistrates’ Court has had 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 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act‘) states that workers are entitled to benefits. (‘Worker’ is broadly defined in section 3 of the WIRC 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 WIRC Act. In addition, the WIRC Act covers specific occupations such as taxi drivers, timber contractors and certain other types of contractors. The WIRC Act specifically excludes certain occupations, such as professional sportspeople and certain types of share farming (see sch 1, pt 1).
What illnesses, injuries or diseases are covered?
Section 39(1) of the WIRC 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 WIRC 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 WIRC 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 WIRC 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’ 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 have 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.
A work-related injury can also occur gradually and be due to the nature of a worker’s employment (see s 39(3) WIRC Act). For example, a shearer who worked for different farmers over many years who suffers from back pain. It is still necessary for a worker to satisfy other entitlement requirements, such as in section 40(3) of the WIRC Act.
In general, all diseases may be the subject of a workers compensation claim provided there is the necessary link with the employment. WorkSafe, a union or a solicitor has details of specific diseases and corresponding occupations or industries in which these diseases commonly arise (e.g. silicosis: any occupation involving silica dust). If a worker is suffering from one of the listed diseases and the worker has worked in the appropriate occupation or industry, then it is deemed that the disease has been contracted in that occupation or industry. To avoid paying compensation, the employer or WorkSafe must 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 WIRC Act.
Journey and break provisions
Section 46 of the WIRC 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 WIRC Act. However, the break must have been a substantial interruption or deviation. For example, if a worker goes to a hotel for a few drinks it does not necessarily mean that any rights to compensation are lost because of the ‘deviation’ to the hotel.
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 WorkSafe 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 also ‘Journey and break provisions’, above.)
The WIRC Act contemplates that four types of payments will be made:
- weekly payments for incapacity;
- benefits in respect of death;
- medical and like expenses; and
- certain lump-sum compensation, including damages.
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 3).
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 WIRC 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 reconsidered 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 1 July 2014.
Many 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 their 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 WIRC Act. Payments cease when a worker reaches ‘retirement age’, which is defined as the date at which that worker attains the age when they are entitled to a Commonwealth age pension under the Social Security Act 1991 (Cth).
A worker who is injured after reaching retirement is entitled to up to 130 weeks of payments (s 169). 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 170).
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 96, 103). The employer can be fined for not doing this.
Injuries prior to 1 July 2014
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.
These are defined as the worker’s ‘pre-injury average weekly earnings’ (PIAWE) over the previous 12 months, subject to some restrictions and a maximum weekly amount (s 154). 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.
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 152). Twice state average weekly earnings (AWE) is currently $2570.
Entitlements after 1 July 2014
The following paragraphs are applicable to workers entitled to weekly payments as a result of an injury after 1 July 2014 and are payable after that date. Similar rates will also be paid to workers who are entitled after 4 April 2010 to weekly payments for injuries pursuant to the 1985 Act.
Provided the worker continues to have some incapacity for work and complies with the other provisions of the WIRC 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 163, 164, 165)’, below).
First entitlement period (s 161)
The first 13 weekly payments are:
- No current work capacity: 95 per cent of PIAWE (pre-injury average weekly earnings) or twice AWE (average weekly earnings), whichever is the lesser.
- With a current work capacity: As above less current weekly earnings.
Second entitlement period (s 162)
The weekly payments from the 14th week up to and including the 130th week are:
- No current work capacity: 80 per cent of PIAWE or twice AWE, whichever is the lesser.
- With a current work capacity: 80 per cent 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 per cent of PIAWE to a maximum of twice AWE.
After the second entitlement period (ss 163, 164, 165)
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 the worker’s favour, weekly payments continue to be paid at these rates:
- No current work capacity and no prospective work capacity (s 163): 80 per cent 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 164): A worker needing surgery may in certain circumstances receive up to 13 weeks weekly payments even if weekly payments may have previously ceased.
- Currently employed for at least 15 hours per week, earning at least $220 per week, and likely to continue indefinitely to undertake further or additional paid work (s 165): 80 per cent of the difference between PIAWE and current weekly earnings or the difference between twice AWE and current weekly earnings, whichever is the lesser.
Superannuation (s 168)
A worker is entitled to compensation in the form of superannuation contributions after 52 weeks of entitlement to, or payment of, weekly payments.
Termination of weekly payments
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 111–117).
Under the 1985 Act, a worker receiving weekly compensation payments can have those payments stopped or altered by WorkSafe or a self-insurer if the worker:
- has returned to work (s 183 (1)(c)(i)); however, the worker may still have 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 175); however, going overseas for a short time on holiday does not mean that the worker stops residing in Australia.
A worker’s right to receive weekly payments may be suspended or terminated if the worker:
- fails to provide certificates as to incapacity as well as a prescribed declaration as to employment every 28 days or within such extra time as WorkSafe or the self-insurer allows (s 167); or
- is in prison (s 177); or
- resigns from employment for reasons unrelated to his or her incapacity (s 185); or
- is fired from employment for misconduct (s 185).
Under section 183, WorkSafe or the self-insurer can give a notice to the worker that weekly payments will be reduced or terminated. The period of this notice depends on the length of time a worker has been receiving weekly compensation payments 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 notice period of 28 days. Thirteen 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 164, these 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 183 if it is considered that:
- there is not or no longer an entitlement to weekly payments of the existing (or any) amount; or
- the worker’s current weekly earnings alters.
For procedures beyond this stage, see ‘Procedure in contested claims’, below.
Claims in the event of death
Claims by dependants and non-dependants of deceased workers
All monetary amounts set out in this section apply to deaths occurring after 1 July 2019.
The WIRC Act gives an entitlement to workers compensation where death results from, or is materially contributed to by, injury (s 234). 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 30 June 2014, compensation is paid under sections 235–243. Note that this section refers to such deaths unless otherwise indicated.
The WIRC 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 WIRC 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 WIRC 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 WIRC 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 WIRC 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 when one person is 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.
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 $644 640 to a single dependent partner with a single dependent child receiving $64 460. Legal or union advice should be sought for the appropriate rates prior to that date.
A weekly pension is paid to a dependent partner for three years after the worker’s death (a larger amount is paid in the first 13 weeks). Also, 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 depends on the worker’s PIAWE and the number of dependent children.
Of course, these rates are maximum amounts payable where liability is admitted by WorkSafe or the 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 depend-ants 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, under the WIRC Act, the ‘reasonable’ costs of the deceased’s funeral and other burial expenses are payable up to certain amounts. Also, an amount of up to $6730 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 240)
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. An amount of up to $38 460 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 243)
In certain circumstances, 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. The maximum provisional payment is $9600.
Medical and like expenses
Entitlements and requirements
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 expenses covered by the WIRC Act are set out in Part 5, div 7, and cover medical, hospital, ambulance, chemist, nursing and travelling expenses, artificial medical aids, and treatment by registered chiropractors and osteopaths. Counselling benefits (set out in ‘Claims in the event of death’, 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 provisions listed in ‘Claims in the event of death’, above, is not complete and a careful reading of the provisions is recommended.
The worker is allowed to consult doctors of their choice, whether for treatment or for giving evidence to the court. However, the worker must submit to examination by doctors nominated by the employer, insurance company or WorkSafe at ‘reasonable intervals’ without any expense to the worker (s 27).
The WIRC 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 WorkSafe schemes, the self-insurer is generally not 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 232(1)). A 28-day Notice must be given prior to such a termination.
Lump sums and settlements
There are very limited rights for an injured worker to obtain a lump sum under the WIRC Act.
Non-economic loss (impairment benefit)
A worker may be entitled to a lump sum under sections 211, 212 and 213 or (if there is a ‘total loss’) section 221. 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 sections 211, 212 and 213.
The types of injuries covered for non-economic loss 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 covered by these provisions. However, any partial loss or impairment, severe facial disfigurement or severe bodily disfigurement is not covered by section 221.
Compensation under sections 211, 212 and 213 is calculated by using the 4th edition of the American Medical Association Guides (‘AMA Guides (4th edn)’). However, there are specific guidelines for the assessment of psychiatric impairment, hearing loss and gradual process injuries. Such compensation is not payable for secondary or consequential psychiatric impairment, e.g. as a result of a physical injury (s 56). 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 complex. It is important to get legal advice about this point (see Chapter 2.4: Legal services that can help).
Claims under sections 211, 212 and 213 generally must be above the minimum threshold of 30 per cent in psychiatric cases and 10 per cent in non-psychiatric cases. The amount of compensation varies according to the percentage degree of impairment under section 211, 212 and 213 and certain prescribed amounts for nominated injuries in section 221. The maximum amount payable for injuries on or after 1 July 2021 is $644 640 for sections 211 and 212, and $317 630 for section 221.
Settling a claim outside court
A worker and the self-insurer or WorkSafe may agree to ‘settle’ a compensation claim outside the court.
In addition, the WIRC 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 296(3)). 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 235).
Making a claim
Under the WIRC 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 WIRC 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 575). Also, employers must forward claims for compensation to WorkSafe within 10 days of receiving the claim; they may face financial penalties if this is not done.
WorkSafe 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 75(1)).
All claims for compensation must also include a medical authority, signed by the worker, allowing WorkSafe 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 41). However, such a requirement by an employer may infringe Commonwealth Government anti-discrimination legislation.
A worker should not accept advice other than legal or trade union advice. The rejection of liability by the employer, insurance company or WorkSafe 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.
Time limits on making a claim
Under the WIRC Act (s 18(1)), 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.
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 18(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 20). 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 WorkSafe or the self-insurer (or the court) that it could not reasonably have been made while the worker was employed by that employer (s 22(2)).
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 22(3)).
Any claim for a death benefit should be made within two years of the death of the worker. In addition, any claim for medical and like expenses 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 18(6), (7), 22(9)).
Procedure in contested claims
Contested workers compensation matters are heard by a court (see ‘Workers compensation’, above).
Generally, an application can be made to the court from any decision of WorkSafe 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 is only allowed before a conciliation officer if all parties, including the conciliation officer, agree. The conciliation officer can direct WorkSafe, the employer or the 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 $5000.
If the conciliation officer believes there is a genuine dispute about 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 non-economic (impairment benefit) claims to be referred to conciliation before they are heard in court (s 273(1)). A certificate must be issued by a conciliation officer before the court hearing (s 273(1)), except where proceedings have started for another dispute between the parties and the court issues a certificate (s 273(2)).
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 313(4)).
All enquiries about conciliation should be addressed to the Accident Compensation Conciliation Service (see ‘Contacts’ at the end of this chapter).
A worker appearing at a conciliation may be entitled to limited travelling expenses and loss of wages incurred for attendance there.
Under the WIRC Act, there is a right of appeal from a decision of the court to the Supreme Court on questions of law.
Each party before a conciliation officer must pay their own legal costs (s 301). Legal costs are also not recoverable for assisting a person to make, lodge or forward a claim for compensation or application for compensation (s 24). The court has limited power to award costs. Except in proceedings brought by WorkSafe 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 s 278). There are cost penalties to ensure that most cases will be heard in the Magistrates’ Court.
Subject to some minor restrictions in the WIRC Act, including those matters set out above, a solicitor can obtain costs from their own client with respect to any compensation claim.
Anyone employed by the Commonwealth of Australia, or by certain ‘licensees’ such as the Commonwealth Bank and 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.