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Deemed Serious Injury Applications Under Threat

Published on 28 September 202613 October 2026

The Supreme Court of Victoria has ruled that WorkSafe must deem an injury serious once a worker is assessed at 30 per cent impairment or more. WorkSafe is appealing. Here is what the decision means for injured workers, and for the lawyers and doctors who act for them.

Written and reviewed by Kehela Vandenberg, Senior Associate and Practice Leader, Occupational and Dust Diseases.

The short answer

If your work injury has been assessed at 30 per cent whole person impairment or more, Victorian law says you are “deemed” to have a serious injury. That is the gateway to a common law claim for damages against your employer. In a case run by Zaparas Lawyers, WorkSafe refused to treat a worker’s 39 per cent assessment as a serious injury because it did not accept his illness was work-related. In July 2026 the Supreme Court of Victoria ruled that WorkSafe had no choice. At 30 per cent or more, the deeming must follow, and any argument about whether the injury was work-related belongs at the damages stage. WorkSafe has appealed, and the Court of Appeal will have the final say.

The law in one minute

A serious injury is the legal gateway to a common law damages claim in Victoria. There are three ways through it: a whole person impairment of 30 per cent or more; WorkSafe accepting a compensable injury is serious and issuing a certificate; or a court deciding the question after WorkSafe refuses.
The Supreme Court has ruled that the first route is automatic. At 30 per cent or more, WorkSafe must deem the compensable injury serious. It cannot refuse because it doubts the injury was caused by work.
Whether the injury was caused by work is still tested, at the damages stage.
WorkSafe is appealing. Until the Court of Appeal rules, the Supreme Court decision stands.

Assessed at 30 per cent or more and told you do not have a serious injury? Get a free claim check. Get My Free Claim Check or call (03) 8527 0200.

Past results are not a guarantee of future outcomes. Each claim is decided on its own facts. General information only, not legal advice.

What happened to the worker

In 2020, a 51-year-old disability support worker was caring for a teenage boy who had flu-like symptoms and was later diagnosed with COVID-19. The worker caught COVID-19 too. He ended up in hospital, in a medically induced coma, and on a ventilator. He has been left with serious physical, psychological and cognitive problems, and he has not been able to work since.

His WorkCover claim was rejected at first, then accepted. He remains entitled to weekly payments and to medical and like expenses. In Victoria, a worker who develops a disease can claim WorkCover benefits if the nature of their work significantly increased the risk of getting it. For these statutory benefits, the worker does not have to prove that work caused the disease.

He then claimed an impairment benefit, which is a no-fault lump sum. The WorkCover agent accepted liability, and he was assessed at 39 per cent whole person impairment.

Why 30 per cent matters

An injured worker in Victoria can only sue their employer for common law damages if they have a “serious injury”. There are three separate gateways:

where an impairment assessment puts the injury at 30 per cent or more, the injury is deemed to be a serious injury;
where WorkSafe is satisfied the injury is serious and issues a serious injury certificate; or
where WorkSafe rejects the application, the worker can ask a court to decide.

Every worker who wants to pursue common law damages must lodge a serious injury application with WorkSafe. Because this worker’s assessment was well above 30 per cent, WorkSafe should have deemed his injury serious automatically.

What WorkSafe did

WorkSafe rejected the application. It said the injury “did not arise out of employment, was not sustained in the course of employment nor was it due to the nature of employment, within the meaning of the Act”. In plain terms, WorkSafe said he did not have a compensable injury at all. It said this even though his WorkCover claim had been accepted, he was still receiving benefits, and the agent had accepted liability for his impairment benefit.

What the Supreme Court decided

The worker asked the Supreme Court of Victoria to set aside WorkSafe’s decision and to order WorkSafe to deem him as having a serious injury. WorkSafe argued two things: that it was not bound to deem an injury serious, even above 30 per cent, where it considered the injury was not compensable; and that its decision was not the kind a court could review at all.

In July 2026 the Court found for the worker on both points. The decision was open to judicial review. And the deeming provision gives WorkSafe no choice: once a worker is assessed at 30 per cent or more, the injury is deemed serious and the certificate must follow. WorkSafe’s view that the injury was not work-related is not a reason to refuse. That argument can be run at the damages stage, where causation and negligence are decided.

The appeal

WorkSafe has appealed, and the matter is now before the Victorian Court of Appeal. Until the Court of Appeal rules, the Supreme Court decision stands. We will update this article as soon as the outcome is known.

What this means if you have been assessed at 30 per cent or more

If your impairment assessment is 30 per cent or more and WorkSafe has refused you a serious injury certificate because it says your injury is not work-related, that refusal may be open to challenge. Get advice promptly. Rather than simply asking a court to decide whether you meet the serious injury test, you may be able to have a court require WorkSafe to issue the certificate under the deeming provision, as this worker did. Time limits apply to disputing a serious injury decision in court and to common law claims, so do not wait for the appeal to finish before asking.

One point to be clear about. The decision does not remove the causation question. It moves it to a later proceeding. To recover damages you still need to show, on the balance of probabilities, that your work caused or materially contributed to your condition and that your employer’s negligence caused or materially contributed to it. What WorkSafe cannot do, on the current law, is use that question to shut the gate before you reach it.

For practitioners and referrers

Serious injury applications are a gateway process. Causation can be considered in a serious injury proceeding, but the courts have recognised that the evidence adduced at that stage is narrower in scope than the evidence at trial, and the sufficiency of that evidence for causation must be assessed in that light (Findlay v TAC [2025] VSCA 126). A lesser threshold for causation has therefore been accepted at the serious injury stage than in a damages proceeding. Where possible, causation is better argued at the damages stage, where discovery and interrogatories give more ways to test the evidence.

For a worker with an alleged work-related disease to recover common law damages, it must be accepted that it was more probable than not that exposure to a hazardous substance was a cause of, or materially contributed to, the condition, and that it was more probable than not that the employer’s negligence was a cause of, or materially contributed to, the disease.

In Han v Victorian WorkCover Authority [2026] VSC 273, the Authority argued that it was not bound by the deeming provision where it considered the worker had no compensable injury, and that its response was not amenable to judicial review. The Court rejected both arguments. The wording of the deeming provisions does not confer a choice on the Authority as to how it responds once the impairment assessment reaches the threshold, and the Authority’s view on whether the injury arose out of, in the course of, or due to the nature of employment is not a basis for refusing an application that ought to be deemed. Those questions can be contested at the damages stage.

The practical point is simple. A whole person impairment rating at or above the statutory threshold does the deeming work on its own. Where a client has been assessed at 30 per cent or more and the certificate has been refused on causation grounds, the refusal is open to challenge. The Authority’s appeal is before the Court of Appeal, and this note will be updated when judgment is delivered.

Zaparas Lawyers acted for the worker. Practitioners and health professionals with a client or patient in this position are welcome to contact our occupational and dust diseases practice on (03) 8527 0200 or contact@zaparaslaw.com.au.

Plain English glossary

Whole person impairment (WPI): a percentage rating of permanent impairment, assessed once the injury has stabilised, used for the impairment benefit and for the 30 per cent serious injury route.
Deemed: treated by the law as a fact. At 30 per cent or more, the injury is deemed serious without WorkSafe having to be persuaded.
Serious injury certificate: WorkSafe’s written confirmation that a worker has a serious injury, which opens the way to a common law claim.
Common law damages: compensation sued for against the employer, on top of statutory benefits, for pain and suffering and for loss of earnings.
Judicial review: asking a court to check whether a government body made its decision lawfully.

FAQ

Does a 30 per cent assessment mean my damages claim will succeed?

No. It means you are deemed to have a serious injury, which is the gateway. To recover damages you still need to prove that your work caused or materially contributed to your condition and that your employer was negligent. The Supreme Court decision is about the gateway, not the outcome.

What happens if the Court of Appeal overturns the decision?

The law on this point could change, and the article will be updated the day we know. Whatever the appeal decides, the other two routes to a serious injury certificate remain, and time limits keep running, so it is sensible to get advice now rather than wait.

I was assessed under 30 per cent. Does this decision affect me?

Not directly. Below 30 per cent you can still qualify through the narrative test, which looks at how the injury has affected your life and your work. See our guide to what counts as a serious injury under WorkCover.

Does this apply to TAC claims?

This decision is about WorkCover and the Workplace Injury Rehabilitation and Compensation Act. TAC claims have their own serious injury rules. If your injury came from a road accident, speak to us about the TAC pathway.

How Zaparas helps

This was our client’s case, and our occupational and dust diseases team ran it. Work-related diseases are often refused because an insurer doubts the link to work, and that doubt can surface at every stage: the initial claim, the impairment benefit, and the serious injury application. We look at each refusal on its own terms and test whether it can be challenged. If you have been assessed at 30 per cent or more and told you do not have a serious injury, or if you are unsure where your claim stands, it is worth letting us look before you assume the answer is no.

Key takeaway: At 30 per cent whole person impairment or more, the Supreme Court has ruled that WorkSafe must deem your injury serious. Whether work caused it is tested later, at the damages stage. WorkSafe is appealing, so get advice now rather than wait.

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Told you do not have a serious injury? Do not let that be the last word. Get My Free Claim Check · Call (03) 8527 0200