When you begin a workers’ compensation claim you are generally able to receive weekly benefits (weekly income), and funding for travelling, pharmaceutical, medical and rehabilitation expenses.
The entitlement to weekly payments of workers compensation stops when the first of the following happens:
- the incapacity stemming from the work related injury stops;
- you have received weekly payments for the incapacity for 5 years; or
- compensation under the Workers’ Compensation and Rehabilitation Act 2003 reaches the maximum amount (i.e. $362,273.11 as at 1 July 2022).
The entitlement to the payment of medical treatment, hospitalisation and expenses for an injury stops when:-
- the entitlement of the worker to weekly payments of compensation mentioned above stops; and
- medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.
After the benefits have stopped the next step is to request a Notice of Assessment. This part of the claim is for a lump sum amount and is based upon a permanent impairment percentage as assessed by a Doctor and/or Medical Assessment Tribunal. WorkCover may refer you for this assessment or we can request that WorkCover refers you. The calculations for the lump sum amount are then provided in the document called a Notice of Assessment.
If you disagree with the assessment you may request a review by a second medical practitioner or the Medical Assessment Tribunal (unless the Tribunal made the original decision). You have 20 business days only after receiving the notice of assessment of permanent impairment to request a review of the decision by a Medical Assessment Tribunal or you are taken to have agreed with the PERCENTAGE of permanent impairment.
The amount that you receive in lump sum compensation then depends on the permanent impairment. For an injury after 1 July 2022, you would receive $3,622.73 for every 1%. This amount varies annually.
The range of that percentage is then determined by an assessment pursuant to the Guidelines for Evaluation of Permanent Impairment (GEPI). If we look at a knee injury for example, there are several different types of evaluation that can be used. In the assessment process, the evaluation giving the highest impairment rating should be used by the Doctor.
Murphy’s law means that anything that can go wrong, will go wrong. This can in some cases apply to these permanent impairment assessments where a Doctor adopts a type of assessment that results in a lower impairment, or adopts a range of motion assessment and you are having a good knee day. By requesting a second assessment an alternative type of assessment might be used by a fresh Doctor, resulting in a higher impairment.
The types of assessment that could be used include (or in combination):-
Leg length discrepancy, which can result in an impairment of 0%, up to 8% where there is a 5cm discrepancy;
- Gait derangement, which is generally only used as a last resort;
- Muscle atrophy, which can result in an impairment of 0%, up to 5% where there is atrophy of 3cm or more in the circumference of the thigh or calf;
- Manual muscle strength testing;
- Range of motion, which is the most common method of assessment and can result in impairment of 0%, up to 14% where the flexion is less than 60o;
- Ankylosis, where the maximum is 27%;
- Arthritis, which is generally assessed by radiological evidence to measure remaining cartilage and can result in a 0%, up to a 20% impairment where there is 0mm of remaining cartilage;
- Amputation at the knee level, which can result in an impairment of 28% to 40% depending on the distance from the knee where amputation occurred;
- Diagnosis based assessment, such as a total knee replacement, which can result in an impairment of 15% to 30%, depending on the outcome of the surgery;
- Complex regional pain syndrome, which would be instead assessed as a nervous system injury rather than a knee injury
A common injury that we see to the knee is an anterior cruciate ligament reconstruction, or medial meniscus repair. An average impairment for this type of injury would be a 4% to 8% impairment, or compensation of $14,490.92 to $28,981.84.
The impairment though does not often reflect the disability that an injured worker is suffering, and in our experience lump sum compensation is often not a large amount or adequate compensation.
Although this first offer is not always sunshine and lollipops, by making a common law claim for damages an injured person will receive a much fuller and more comprehensive amount of compensation but only if the employer is found to be negligent for the injury.
You should seek advice before accepting any offers of lump sum compensation from WorkCover as accepting an offer prevents you from making a common law damages claim. You can only accept a lump sum offer OR claim common law damages, not both.
If you have suffered an injury at work and need assistance with your WorkCover claim, contact one of our injury lawyers on 1300 285 888.
