When may an injured worker not be entitled to Workcover Compensation?

A worker may be entitled to WorkCover compensation if she or he has:

• suffered an injury arising out of or in the course of their employment;
• suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre‑existing injury or disease and their employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration of their pre‑existing injury or disease;
• suffered a heart attack or stroke that arose in the course of, or that was caused by, a disease, and employment was a significant contributing factor to the injury or to the disease; or
• contracted a disease due to the nature of employment (including past employments) and the nature of employment (whether current or a past employment) significantly increased the risk of the worker contracting the disease.  This is irrespective of whether employment actually caused the disease;
•  been diagnosed with one of the prescribed proclaimed disease. This is irrespective of whether past or current work contributed to the disease;
• Is a career firefighter and has been diagnosed with one of the 12 specified cancers and has been employed or served for the respective qualifying period unless there is evidence that the relevant cancer is not due to the nature of the worker’s service as a firefighter.

The dependants of a worker may also be entitled to specialised benefits where the worker suffers an injury arising out of or in the course of employment which results in or materially contributes to the death of that worker.

When can an injured worker be excluded from obtaining WorkCover compensation? 

There may be circumstances where even if the above criteria is met, an injured worker may be excluded from being entitled to WorkCover compensation. Some of these circumstances are summarised below.

The worker has previously received compensation for the same injury arising out of the same circumstances

Where an injured worker has already received compensation either under Victorian WorkCover legislation or via legislation of another State or Territory, they are not entitled to receive additional compensation under the Victorian WorkCover legislation in relation to that same injury.

The worker has a pre-existing injury or disease

As noted above, a worker may be entitled to WorkCover compensation if employment has caused them to suffer a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre‑existing injury or disease.

However, if it can be proved that before commencing employment with the relevant employer the worker had a pre-existing injury or disease that she or he was aware of and the employer:

• advised the worker, in writing, as to the nature of the proposed employment; and
• requested, in writing, that the worker disclose all pre‑existing injuries and diseases suffered which the worker was aware of and could reasonably foresee as being affected by the nature of the proposed employment; and
• advised the worker, in writing, that a failure to make such a disclosure or the making of a false or misleading disclosure, will disentitle a her/him from WorkCover compensation for any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease;  and
• the worker failed to make such a disclosure or made a false or misleading disclosure;

the worker will not be entitled to Workcover compensation for any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease arising out of or in the course of or due to the nature of employment with the employer.

WorkSafe is able to prove that a disease was not due to the nature of employment 

A worker may be entitled to WorkCover compensation if she or he:

• has contracted a disease due to the nature of employment (including past employments) and the nature of employment (current or a past) significantly increased the risk of contracting the disease;
• has been diagnosed with one of the prescribed diseases; or
• is a career firefighter and has been diagnosed with one of the 12 specified cancers and has been employed or has served for the respective qualifying period.

However, in all three scenarios, if WorkSafe can prove that the disease or cancer was not due to the nature of the worker’s employment, the worker will not be entitled to WorkCover compensation.

The worker’s employment is not connected with the State of Victoria

A worker’s employment must be connected with Victoria to be entitled to WorkCover compensation. However, a worker is not excluded from applying for WorkCover compensation in Victoria she or he suffered injury whilst working interstate, so long as it is accepted that their employment is connected to Victoria.
The law states that a worker’s employment is connected with:

1. the State in which the worker usually works in that employment; or
2. if no State or no one State is identified under paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
3. if no State or no one State is identified under paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

Reasonable Management Action and Psychological Injury

A worker who has suffered a psychological or psychiatric injury, is not entitled to WorkCover compensation if the injury is caused (wholly or predominately) by one or more of the following:

1. a management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer;
2. a decision of the worker’s employer, on reasonable grounds, to take, or not to take, any management action; or
3. any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.

Management action has been defined to include, but is not limited to, any one or more of the following:

• appraisal of the worker’s performance;
• counselling of the worker;
• suspension or stand-down of the worker’s employment;
• disciplinary action taken in respect of the worker’s employment;
• transfer of the worker’s employment;
• demotion, redeployment or retrenchment of the worker;
• dismissal of the worker;
• promotion of the worker;
• reclassification of the worker’s employment position;
• provision of leave of absence to the worker;
• provision to the worker of a benefit connected with the worker’s employment;
• training a worker in respect of the worker’s employment;
• investigation by the worker’s employer of any alleged misconduct—
  • of the worker; or
  • of any other person relating to the employer’s workforce in which the worker was involved or to which the worker was a witness; or
• communication in connection with an action mentioned in any of the above paragraphs.

Deliberate or willful self-inflicted injury

If a worker has deliberately or willfully self-inflicted an injury, they are not entitled to WorkCover compensation in respect of that injury, regardless of whether they intended to inflict it or not.

Serious and willful misconduct by the injured worker

Generally, a worker who sustains an injury due to her or his serious and willful misconduct whilst being under the influence alcohol and/or drugs, will not entitled to WorkCover compensation.

A worker already in receipt of WorkCover weekly payments may have her or his entitlements reduced if her or his incapacity for work results from, or is materially contributed to, by an injury that was caused by a transport accident.  The worker must have been the driver at the time of the accident and must have been convicted or found guilty of specific offences under the Road Safety Act 1986 (Vic) or equivalent law of another State or Territory.

What should I do if my WorkCover claim has been rejected due to one of the above-mentioned circumstances or I haven’t put in a claim yet but one of the above circumstances may apply to me? 

We recommend that you speak to one of our dedicated WorkCover solicitors at Zaparas Lawyers who can advise and assist you with your claim.

If I am excluded from pursuing WorkCover compensation, am I eligible for other entitlements?

You may be entitled to other benefits regardless of whether or not you qualify for WorkCover compensation.  These entitlements may include:

• Total and permanent disablement benefit under your Superannuation Scheme;
• Income protection;
• Critical illness Insurance or Trauma; and
• Incolink benefits (subject to being a member of an Incolink policy).

Whether you qualify for any of the above benefits will depend upon the policy or policies you may hold and the specific requirements that need to be satisfied.

We recommend that you speak to one of our dedicated Superannuation solicitors at Zaparas Lawyers who can advise and assist you with making a claim.

What’s important to you, is important to us

At Zaparas Lawyers have a dedicated team of lawyers with your rights and entitlements.

Contact us today for an obligation free appointment and trust our family to take care of you.

Zaparas Lawyers act on a ‘No Win, No Fee’ basis. In simple terms, this means that in the unlikely event that we don’t secure compensation for you, we will not charge you for any of our professional fees.