Legal concepts and jargon used in the workers’ compensation system
The term common law basically refers to ‘judge-made’ law. Which essentially means that it is the body of law which has been built up from the decisions of judges and magistrates over many, many years (centuries actually!). In other words, common law is the law which is based on decisions of courts in previous cases rather than contained in an Act of Parliament (aka as statute law).
Because the common law is derived from many different court decisions in individual cases, the duties which it confers on persons are broad statements which have been drawn together from all these individual cases. For example, an employee has a duty to follow the lawful directions of his or her employer. There is no piece of legislation which sets out this duty, but it has arisen as an outcome of various court decisions.
The common law does not set out particular penalties. But a court action for damages may follow a breach of the common law, but the damages which may be awarded will be particular to that case.
A tort is a wrong which someone has done to someone else and for which the wrongdoer may be sued for damages. It generally has a civil, not a criminal, meaning. The most important part of the common law which concerns Work Health and Safety (WHS) is the tort of negligence.
Under the above mentioned tort, the onus is on the injured worker to prove negligence by the employer (or whoever is (alleged) negligent, such as a manufacturer, supplier of defective parts/goods).
In a claim for negligence (aka a common law or a common law damages claim) Courts will also look at whether the employer owed the injured worker a duty of care; whether the employer breached that duty of care; and whether the injured worker suffered damage which was caused by the breach of duty.
Our workcover legislation also pretty much restricts common law claims for workcover claims. For example, in Victoria an injured worker must suffer from a “serious injury” (30 whopping percent whole body permanent impairment), be able to prove negligence on the part of the ’employer’ and have suffered damage.
Statute law is legislation created by an Act of Parliament.
For example, all Work Health and Safety (WHS) or (OHS) statutes have been legislated for by all the Australian States and Territories and also by the Commonwealth Government.
Statutes are generally divided into numerous Parts, Divisions, Sections, Sub-sections, Sub-sub-sections, etc, each of which have a particular objective. The more a statute is ‘broken down’ into ‘parts’, the more specific it becomes. The aim being to make each section as specific as possible, so that compliance or non-compliance is clear-cut.
In the context of workcover and WHS/OHS, inspectors will, for example, make decisions and judgements as to whether a person (i.e. employer) has complied with the relevant section of legislation in order to bring about a prosecution. The same applies in a Court, where a judge/magistrate will also rely on the legislation in order to determine whether such a prosecution is successful or not.
A statute will also specify what particular penalty/fine/prison sentence applies if there is a failure to comply with [a] requirement of such an Act.
Definitions of terms
Means “the workcover legislation applicable in your state”, for example, in VIC “Victorian Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act)” (which now combines the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993, into a single Act )
Means duties that are meaningful and productive and within the medical restrictions of the injured worker.
Means an employee of the Insurer primarily responsible for liability determination and case management of individual workers’ compensation claims.
Where a claimant (=injured worker) and/or affected party expresses dissatisfaction with the service provided by an insurer and the matter remains unresolved to the complainant’s satisfaction.
“Conflict of Interest”
Means a perception of bias for or against any party to any aspect of the claims process.
Means the approved licenced Insurer of the employer at the time of the latest injury, aggravation or recurrence as set out in the relevant Act of your state.
Means full and frank disclosure to the worker and the employer by the insurer of all the worker’s rights and entitlements pursuant to the Act.
Where a claimant and/or affected party who is dissatisfied with a decision the insurer has made in relation to the application of the Act.
Means the lodgment of an application or referral to the dispute resolution service in your state, i.e. Conciliation and Arbitration Service (“the CAS”) in WA, Conciliation (ACCS) in VIC etc.
Means the Insurance Council of Australia.
Means either full or partial incapacity to perform pre-injury duties.
Means the cover provided by the insurer to the employer under the policy issued in accordance with the Act.
Means as defined by the Act.
Means facilitating a coordinated approach to achieving a maximum recovery and return to work for injured workers.
Means an insurer approved by the Minister to conduct business in accordance with the provisions of the Act.
“Internal Dispute Resolution Process”
Means the formal process adopted by insurers to review decisions made in relation to any issue arising under the Act.
“Liability Determination Strategy”
Means the structured and consistent steps to be taken to gather information necessary to determine liability.
Means a without prejudice payment of a medical expenses by an insurer with or without an order of the dispute resolution service (i.e CAS, ACCS etc)
Means an accredited mediator or other person with an extensive knowledge of the Workers’ Compensation Act. Preferably, a solicitor who is not affiliated with any of the parties should conduct the Mediation.
The party that institutes a suit in a court. Also known as Complainant, Claimant
Means the provision of sufficient evidence to support an arguable case.
“Senior Claims representative”
Means an employee of an Insurer who has a higher level of authority than the claims representative.
“Senior Review Officer“
Means an employee of an Insurer, who has the highest level of claims authority charged with reviewing Claims Representative decisions.
“Vocational Rehabilitation Provider”
Means a person or organisation accredited by WorkCover , engaged by the Employer, Worker or Medical Practitioner, in consultation with the worker, to implement appropriate and effective rehabilitation measures.
Means a payment, admission or agreement without admission of liability by any party
Accident Compensation Act 1985 (Vic)
The legislation that provides compensation for work injuries in Victoria, and set out the legally processes for statutory claims.
Accident Compensation Conciliation Service (ACCS)
The body set up under the Accident Compensation Act to assist parties to resolve disputes about claims without going to Court. The ACCS organises conciliation conferences.
The American Medical Association ‘Guides to the Evaluation of Permanent Impairment’ (4th Edition is in use in Victoria). These provide guidelines for IMEs (Independent Medical Examiners) to assess the level of impairment (loss of body function) of an injured person.
Common law claim
A claim issued in the Courts to claim compensation for an injury caused by negligence. Although these claims are made in the Court system, most claims are settled before they get to Court. Common law claims can be made for work injuries and diseases, injuries in public places (public liability), injuries due to faulty products, or negligent medical treatment.
A common law claim is different from a WorkCover, Transport Accident Commission (TAC) or ComCare claim, which do not involve negligence.
A conference to try to resolve a WorkCover dispute between the worker and the insurer, without going to Court. A neutral Conciliator (or Conciliation Officer) assists the parties to discuss the options. The injured person can ask another person to assist, or in exceptional circumstances can sometimes bring their lawyer. There is no fee to ask for or attend conciliation, and it is faster than a Court hearing. If the parties cannot agree, the injured worker may be sent to a Medical Panel and/or the injured worker still has a right to go to Court.
Deemed serious injury certificate
See also serious injury certificate. The serious injury certificate is “deemed” to be granted (automatically granted) to the injured worker if the defendant fails to respond to an application within 120 days. It can also be “deemed” if the injured worker suffers 30% or more impairment in WorkCover or Transport Accident (TAC)cases.
Also known as pain and suffering damages.
A dollar amount of compensation awarded to an injured person in a common law claim, to compensate for the pain and suffering and loss of enjoyment of life due to the injury. This is separate to special damages, which compensate for financial loss and medical and special care costs. The amount can be determined by a jury, judge, or it can be negotiated out of court.
IME (Independent Medical Examiner)
This is a doctor who examines an injured person in order to provide an opinion as to the injured person’s eligibility for various types of compensation.
Loss of function of the parts or systems of the body due to the injury. Impairment is measured by IMEs (Independent Medical Examiners), or the Medical Panel.
Monetary compensation available for transport accident and work-related injuries. This is a lump sum payment, and is a separate entitlement from medical expenses, and weekly payments for lost earnings.
Hearing loss due to exposure to loud noise in a work environment. This used to be known as “boilermaker’s deafness” because metal-workers were the first known group to have hearing damage from noise exposure at work. Industrial deafness can be diagnosed specifically – compared to other types of hearing loss – because hearing is damaged differently at different frequencies. Industrial deafness is an injury for which compensation is available under theAccident Compensation Act 1985, even if the workplace provided hearing protection.
Hearing loss, as an injury, is measured as a percentage. An Ear, Nose & Throat specialist or an Audiologist can conduct hearing tests to measure hearing loss, and also to diagnose the likely cause. Industrial deafness is one type of hearing loss, and can be compensated under the WorkCover system.
Medical expenses (Medical and like expenses)
An entitlement of a person injured at work to have medical treatment and other related expenses paid for by the TAC, WorkCover or the employer. This can include a broad range of treatments, therapies and equipment, but only what is judged to be “reasonable” for the injury.
A Medical Panel can assess claimants in WorkCover claims or common law claims, when there is a medical issue to be resolved. A Medical Panel is a number of specialist medical practitioners who are accredited to examine patients for compensation claims. Their decisions are usually binding on the injured person and all other parties, because they are specialists in the area or areas of medicine relevant to the claim. A Medical Panel decision can only be appealed if there is an error in law in the Panel’s reasons.
The failure to take reasonable care. In injury law, negligence arises if a person, company or government authority fails to take reasonable steps for the safety of another person. If the person suffers harm because of that failure, he or she may have a right to compensation. A claim for compensation for negligence requires the plaintiff (claimant) to prove:
- That the defendant owed a duty of care to the plaintiff;
- That the defendant failed to take reasonable steps to fulfil that duty (this is the “negligence”);
- That failing to take those steps caused harm to the plaintiff; and
- That the defendant should have foreseen the risk that the plaintiff would suffer harm.
Pain and suffering damages
Also known as general damages.
Monetary compensation for the pain and loss of function and enjoyment that an injury has caused. This is a separate amount of compensation from medical and related expenses, or lost earnings. Pain and suffering damages can be awarded by a Court, or an amount can be negotiated and settled out of Court.
A precedent is a decision made by a Court which other Courts follow in similar cases in lower Courts. Injury law in Victoria is governed by both legislation and precedents. Precedents make our “common law” system more predictable.
Pre-injury average weekly earnings (PIAWE)
The average amount an injured worker earned per week – including overtime – before an injury affected his or her ability to work. If a worker receives weekly payments while he or she cannot return to work, the amount is calculated using the PIAWE. For the first 26 weeks of weekly payments, overtime and penalty rates are included in the calculation of PIAWE.
Serious injury certificate
Confirmation that the injury claimed for is “serious” and permanent, and has been caused or contributed to by the Defendant. A serious injury certificate can be agreed to by the defendant, or granted by the Court based on evidence presented. Once this is granted, the plaintiff has proved the injury and the other issues in the common law claim or statutory claim remain. If the Court refuses to grant a serious injury certificate, a common law claim for work injuries or transport accident injuries cannot proceed.
In a common law claim, special damages are the dollar amount calculated to compensate the injured person for medical expenses, financial loss and special care costs. These are separate to general damages.
For work-related injuries, compensation is available under the “statute” – the Accident Compensation Act. These claims are made against the WorkCover Authority, or sometimes against the employer itself. A statutory claim does not require the injured person to prove that the employer is at fault. The other way to claim compensation is by making a common law claim.
Note: For transport accident (TAC) injuries, compensation is available under the “statute” – the Transport Accident Act. These claims are made directly against the Transport Accident Commission (TAC). A statutory claim does not require the injured person to prove that any driver or other party is at fault. The other way to claim compensation is by making a common law claim. A serious injury certificate is required to make a common law claim.
For common law claims, an injured person needs to issue their claim within the time limit, or “limitations period”. Extensions of time are sometimes allowed by the Courts, but generally a claim must be made within the relevant time. This is why it is important to get prompt legal advice if you think you may have a claim. In Victoria the time limit is 6 years.
Compensation for lost income while a person is unable to work due to his or her work-related injury. The amount of the weekly payment is a percentage of the worker’s PIAWE, capped at a maximum dollar amount.
Whole Person Impairment (WPI)
A measure of the severity of an injury, for the purpose of calculating compensation. The WPI is a percentage calculated by medical specialists who are accredited to apply the authorised guidelines.