What’s the Difference Between WorkSafe, WorkCover and a WorkCover Insurer?

You may be feeling confused about who is who when you suffer a work related injury. You may have heard the terms ‘WorkCover’ and seen ads on TV for ‘WorkSafe’, but who do you need to contact if you are unfortunately injured?

Victorians who are injured at work are eligible to make a claim under their employer’s WorkCover insurance.

The Victorian WorkCover Authority (VWA) is the State Government body that oversees the WorkCover scheme. This authority is commonly referred to as WorkSafe. It gains its powers from the same legislation that covers workers’ rights.

WorkCover is a term commonly used to refer to the scheme, the authority, the insurance and the entitlements.

WorkSafe is also the occupational health and safety enforcement arm of the Victorian WorkCover Authority. WorkSafe can conduct health and safety inspections, issue improvement notices and fine or prosecute employers who are found to have breached OH&S laws.

WorkCover laws require that employers take out Workcover insurance policy with one of WorkSafe’s agents. These ‘agents’ are insurance companies appointed by WorkSafe to manage employers’ WorkCover insurance and compensation claims made by injured workers. The following WorkCover insurers are currently WorkSafe agents so all claims will be managed by one of them:

  • Allianz Australia Workers’ Compensation (Victoria) Limited
  • EML VIC Pty Ltd
  • Gallagher Bassett Services Workers Compensation Vic Pty Ltd
  • Xchanging

It is also important to note that some employers are self insured and manage their own workers compensation claims.

If you do not know which insurer covers your workplace you can ask the WorkSafe Advisory Service on 1800 136 089.

If you would like some free, no obligation advice about a work injury, please call one of our lawyers on 1800 853 085 for advice about your rights and entitlements.

Can I be Compensated for Work-Related Hearing Loss?

work compensation

In Australia, approximately one in seven people will develop hearing loss.[1] From this portion, studies suggest that 37% are a result of noise induced hearing loss, including exposure at work.[2]This is common for those who work in the construction, manufacturing and automotive industries.The effects of exposure to hazardous noise levels can range from constant ringing in the ears (also known as tinnitus) to permanent hearing loss.

Under the VictorianWorkCover scheme, you are entitled to compensation if your employment is causative of or is a significant contributing factor to your hearing loss. Generally speaking, if you were exposed to damaging noise in the course of your employment and you have suffered hearing loss, your claim should be accepted.

What should I do if I notice hearing loss?

1.Speak to your employer – Inform them of hearing loss symptoms. If you work in a noisy work environment, you should ask your employer to provide you with the appropriate hearing protection.

2. Consult your GP – Your doctor can advise you about the appropriate treatment requirements and whether a referral to an Audiologist is necessary.

3. Lodge a WorkCover claim – A WorkCover claim should be lodged with your last employer that has contributed to your hearing loss. There is no requirement for you to be working to lodge your claim.

What are my entitlements?

Once your claim is accepted, you are entitled to the following:

1.Weekly payments

a. For the first 13 weeks from the date of your incapacity, you are entitled to 95% of your pre-injury average weekly earnings if you cannot perform your pre-injury duties.

b. From 14 weeks to 130 weeks from the date of your incapacity, you are entitled to 80% of your pre-injury average weekly earnings if you cannot perform your pre-injury duties.

c. After 130 weeks from the date of your incapacity, you are entitled to 80% of your pre-injury average weekly earnings if you cannot perform any suitable employment on an indefinite basis.

2. Medical and like services – The WorkCover insurer will pay the reasonable cost of any medical and like expenses that are referable to your work-related hearing loss. These expenses can include hearing aids or devices.

3. A lump sum impairment benefit–You are entitled to a modest lump sum benefit, provided that your hearing loss impairment is permanent and assessed at a whole person impairment rating of 10% or more.Currently, the maximum amount that can be awarded for a total loss of hearing is $206,500.[3]

4. Common law damages – If the consequences of your hearing loss are considered ‘serious’ and negligence can be established against your employer, you may be entitled to damages for pain and suffering and economic loss.

How is my hearing loss impairment assessed?

Once an impairment benefit claim is lodged, the WorkCover insurer will arrange for you to be examined by an Otolaryngologist (ENT specialist). The specialist will assess your National Acoustics Laboratory (NAL) hearing loss level, which is then converted to a whole person impairment percentage.

Is there a time limit on lodging a hearing loss claim?

You should lodge your Worker’s Injury Claim Form within 30 days of becoming aware of your hearing loss. Our team of lawyers can assist you with completing your claim form.

If you are not sure whether you have sustained work-related hearing loss, please contact us on 1800 853 085. We work on a complete ‘No Win No Fee’ basis and will ensure that you receive the entitlements that you deserve.

[1] Hearing Care Industry Association, Hearing for Life – The Value of Hearing Services for Vulnerable Australians (March 2020).

[2] Hearing Care Industry Association, The Social and Economic Cost of Hearing Loss in Australia(June 2017).

[3]https://www1.worksafe.vic.gov.au/vwa/claimsmanual/Claims_Manual/6-specialised-payments/6.2_Impairment_Benefits/PDFs/Indexation_2021/no-disadvantage-20-current.pdf.

What is Vicarious Liability?

Employers have a non-delegable duty to take reasonable care to avoid the foreseeable risk of physical or psychological injuries to their employees. This duty extends to ensuring that their employees act in a safe and reasonable manner.

Vicarious liability refers to the way the law transfers liability onto employers for the negligent acts or omissions of their employees acting “in the course of employment”.

What does “in the course of employment” mean?

This means that the negligent actions must have a sufficiently close connection or nexus with the work for which the employee was required to perform.

An example of this is if you were a builder and a ladder fell onto your head, which had been inadvertently left unsecured by another employee. In these circumstances, the placement of the ladder by the employee can fall within the scope of their employment.

Criminal actions of employees

Depending on the circumstances, employers can also be found variously liable for their employee’s criminal actions. The evolution of common law principles has provided clarity as to how Courts view these circumstances.

In the 1999 case of Bazley v Curry, the Supreme Court of Canada decided that there was a sufficient connection between the employer’s creation or enhancement of a risk and the employee’s criminal act.

Similarly, the High Court in Prince Alfred College Incorporated v ADC[2016] HCA 37, espoused the “relevant approach” test –an employee’s criminal action does not absolve the employer of vicarious liability. This case held that one must look at the employee’s role and the nature of their responsibilities when determining whether the job gave the occasion for wrongful conduct.

In contrast, the 2017 case of Osmond v Highway Traffic Control Ptyprovides authority that while the employment gave opportunity for sexual conduct, it was otherwise unconnected with the employee’s tasks and obligations. Accordingly, the employer was not vicariously liable.

When is vicarious liability considered in compensation claims?

In order to receive common law damages, one of the requirements is to establish that your employer was negligent. Vicarious liability can be one of the ways in proving that your employer was negligent.

If you have sustained a workplace accident due to another colleague’s actions, please contact us on 1800 853 085. We pride ourselves on investigating and understanding your injuries in order to maximise your entitlements.

Dependency Claims – WorkCover

Losing a loved one due to a workplace injury can be a very traumatic experience. You may experience feelings of profound sadness, hopelessness and uncertainty. In circumstances where your partner or family member was the breadwinner, you may also be placed under significant financial strain.  It is important to know there are a number of entitlements that you can pursue as a dependant.

Am I eligible to make a dependency claim?

Generally, there are three categories of ‘dependants’ eligible to make a dependency claim:

  1. Dependant partner – A partner, who was wholly or mainly dependent on the deceased’s earnings. A partner who resided with the deceased at the time of death is deemed a dependant.
  2. Partially dependant partner – A partner, who was to any extent dependent on the deceased’s earnings.
  3. Dependant child –A child under 16 or under 25 and a full-time student or apprentice who was dependent on the deceased (including an orphan child or child born after the death of the deceased).

Dependants may be other family members or non-family members.

What are my entitlements?

Once WorkSafe accepts that you are a dependant and that the death was work-related, you will be entitled to the following:

1. Weekly Pension

As a dependant partner, you may be entitled to a weekly pension of up to $2,570* per week. For the first 13 weeks after the death, you are entitled to 95% of your late partner’s pre-injury average weekly earnings (PIAWE). From 14 weeks to three years, you are entitled to 50% of your late partner’s PIAWE. If there is more than one dependant partner, this amount will be equally shared between partners.

Dependent children may also receive a weekly pension of 5% of the deceased’s PIAWE. This will commence 14 weeks after the date of death until they turn 16. After they turn 16, the pension will continue until the age of 25, if they are a full-time student or apprentice.

2. Funeral Expenses

WorkSafe will pay the reasonable cost of burial and cremation services, up to $15,230.

3. Family Counselling Services

WorkSafe will pay the reasonable cost for family counseling services, up to $6,820 for the entire family.

4. Lump Sum payments

In addition to the weekly pension, payment of a lump sum up to $644,640* will be provided, to be shared between all eligible dependents.

5. Damages under the Wrongs Act

Pursuant to Part III of the Wrongs Act 1958 (Vic), you are entitled to make a claim for past and future loss of financial dependency and services. You are able to recover damages of up to $1,111,180*if it can be established that the employer’s negligence caused the injuries that resulted in the death. Any statutory benefits that you received from the dependency claim will be reduced from an award of damages.

Are there time limits to making my claim?

Yes. You have two years from the date of death to lodge a dependency claim. You have six years to make a damages claim for financial dependency.

If you have lost a partner or family member as a result of a work-related accident or injury, please accept our deepest condolences. We understand that this is a difficult time and are here to help. Please contact us on 1800 853 085 so that we can pursue the entitlements that you deserve.

* The figures provided are correct as at 1 July 2021.

PPE requirements during COVID-19. What you need to know

By: Sach Fernando

facemask

COVID-19 has changed the world in so many ways, including how we work.

Living in a pandemic is new to all of us, so it’s understandable that there is some confusion about what to do and what not to do. Here’s what you need to know about COVID-19 and PPE.

What is PPE?

PPE stands for Personal Protective Equipment. In some industries, like construction and healthcare, PPE has always been a standard part of the workplace. But now with COVID-19, other workplaces use PPE, too.

Proper use of PPE helps protect the wearer from infection of COVID-19, and also helps stops the spread.

The type of PPE you use for COVID-19 depends on what you’re doing, but PPE can include any of the following: surgical masks, particulate filter respirators (such as P2 or N95), gloves, goggles, glasses, face shields, gowns and aprons.

When should I use PPE?

Employers are legally obligated to maintain a safe work environment by providing employees with safe and effective PPE that is clean and well-fitting.

An employer must also provide staff with clear information about how and when to use PPE. This includes training staff on how to use it properly – how to safely put it on, how to remove it, how to store clean PPE, and what to do with used PPE.

Last, but not least, an employer must make sure that all staff clearly understand all PPE training and instructions, including providing extra help with those for staff who speak little English.

Beyond PPE

Besides PPE, there are other measures that an employer should put into place to protect staff from COVID-19. Policies and procedures to ensure a safe workplace should include:

  • Good hygiene. This includes frequent washing and sanitising of hands, covering coughs or sneezes with the elbow, and regular wiping down of surfaces.
  • Physical distancing. This means ensuring there is always 1.5 metres between workers and customers.
  • Limiting gatherings. This entails enforcing limits on how many people are allowed to be together at the workplace.
  • Testing/quarantine: This requires unwell staff to stay at home, get tested, and remain in isolation until they get the all-clear from a doctor that it’s okay to return to work.

What if I feel unsafe at work?

Objectionable customer behaviour during COVID-19 has been an issue for those working in customer-facing roles. Between the verbal abuse and refusal to wear masks, it has caused terrible stress for workers.

If you have been subjected to such unacceptable behaviour at work, remember: you have rights! You have the right to speak up, and you have the right to expect something to be done about the issue at hand. And your employer has both the legal right and the legal obligation to keep all staff safe.

However, if your employer is not doing their duty to keep you safe, contact our legal team to understand your rights. If you require our assistance, please call us on 0488 722 444 or 1800 85 30 85.

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

M: 0488 722 444

E: [email protected]

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Bullied At Work? Know Your Rights.

By: Shane Don and Sach Fernando

Bullied at work

Your workplace should be free from bullying, harassment or discrimination. Unfortunately, for countless workers this is not the case.

Bullying in the workplace can have adverse toll on an employee’s psychological health, often compromising their capacity to continue in their chosen career.

What is workplace bullying?

WorkSafe Victoria provides guidance on the definition as the ‘repeated, unreasonable behavior directed at an employee or group of employees that creates a risk to health and safety’.

Unreasonable behavior means behavior a reasonable person would expect to victimise, humiliate or threaten. This includes but is not limited to repeated verbal abuse, threatening body language or unnecessary pressure.

What should I do if I have been bullied?

1. Consult your General Practitioner and provide a detailed history of the bullying and harassment at work which resulted in your psychiatric injury, and how it is impacting you now. Your GP can also provide you with a referral to a psychologist or psychiatrist and issue a Certificate of Capacity.

2. Report your psychiatric injury to your employer as soon as possible, and the impact it is having on your psychological health.

3. Submit a WorkCover Claim. You must complete this form and provide it to your employer to forward on to their insurer. The WorkCover insurer should take no more than 28 days to determine your claim. In the event that your claim is rejected by the WorkCover insurer, you should dispute the decision at Accident Compensation Conciliation Services. It is important that you also obtain legal advice.

 What are my entitlements?

If your WorkCover claim is accepted you are entitled to:

1. Weekly payments of compensation. This will be at a rate of 95% for 13 weeks, and 80% thereafter for a total of 130 weeks. If you have no work capacity into the foreseeable future, you may receive weekly payments to the age of retirement.

2. Payments for medical and like expenses including consultations with your GP, psychiatrist, psychologist and medication.

3. Impairment Benefit -Once your psychiatric injury is considered permanent and stable, you can make an Impairment Benefits claim. You are entitled to this lump sum benefit if you reach a psychiatric impairment assessment of 30% or more pursuant to the Guide to the Evaluation of Psychiatric Impairment for Clinicians. You are not required to prove fault on the part of your employer to succeed in this claim.

4. Common Law Damages – If the consequences of your psychiatric injury are severe and you can establish negligence on the part of your employer, you are entitled to a lump sum award of damages for your pain and suffering, and economic loss.

How do I prove that my employer was negligent?

You must establish that your employer knew or ought to have known about the bullying you were experiencing, making it reasonably foreseeable that you would suffer psychiatric injury. Your employer’s action or inaction will determine whether they breached their duty of care to you.

In circumstances where your psychiatric injury developed due to a conflict with a colleague, you must again demonstrate that your employer was aware of the health impact the conflict was having on you – making it reasonably foreseeable that you would sustain a psychiatric injury.

At Maxiom Injury Lawyers, we will support you through the WorkCover process and always be in your corner. Whilst we understand that these matters are complex, we will relentlessly fight to ensure that you receive the compensation you deserve. If you require our assistance, please call us on 0488 722 444 or 1800 85 30 85.

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

E: [email protected]

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Shane Don Laywers

Shane Don, Lawyer

PH: 1800 85 30 85

E: [email protected]

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