WIRC and TA ACT Summary Tables PDF

Preview

Summary

Summary of the statutory and common law scheme for both WorkCover and Transport Accident Schemes...

Description

WORKERS INJURY REHABILITATION COMPENSATION ACT 2013 VALID FOR INJURIES FROM 1 JULY 2014 (or OTCOE INJURIES THAT CONTINUE AFTER 1 JULY 2014) NO FAULT SCHEME- STATUTORY BENEFITS FAULT SCHEME- COMMON LAW Workers eligible for statutory benefits of: Statute of Limitations: must lodge claim within 6 years from DOI: s5(a) of the 1. Weekly Payments (‘WPs’): s160 Limitation of Actions Act 1958 First aggregate entitlement period- (Date of injury to first 13 weeks) = 95% of Pre- injury average weekly earnings (‘PIAWE’): s161. Eligibility criteria: need to have no current Work capacity (‘CWC’) or suitable WC • Second aggregate entitlement period (13 weeks-117 weeks= 130-week mark) = 80% of PIAWE: s162 Eligibility criteria: need to have no current WC or suitable WC • Post second entitlement period (post 130-week mark) = 80% of PIAWE: s163 Eligibility criteria: no CWC and incapacity is likely to continue indefinitely. •

2. Medical & like expenses: s224 Eligibility criteria: reasonable costs of road accident rescue, medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services received. s.223(2) defines ‘reasonable costs’ Duration: 52 weeks following the cessation of entitlement to WPs.

Non-economic loss claims (‘impairment benefits claim’): s211 • Assessment of injury resulting in permanent impairment: Pt 2 Div 4 • IB claim can made post 12 months of injury or if deemed stable (whichever comes first): s197(2) and (3) • Claimant must be 18 y.o: ss 203 (4) • VWA may suspend IB claim if injury not stable or insufficient medical evidence to make determination: s200 • IB notice of entitlement, impairment and liability due within 120 days: s201 Threshold for compensation: • Back injury: 5% WPI or more (scaled up to 10% Impairment benefits rating) (using AMA Guide 4); • Physical injuries other than chapter 3 injuries: 10% IB rating (e.g. scarring, gastric issues) (using AMA Guide 4); • Psychiatric injury: 30% WPI or more (using GEPIC guide to assess)- primary psych only compensable. NB: cant combine physical and psychiatric injuries to meet threshold: s53(1)(a)

Otherwise statute barred from issuing proceedings unless worker has a ‘serious injury’: ss326 and 327 -Claim lodged after 18 months from DOI only: 328(1)b and s328(2)(b) SERIOUS INJURY (‘SI’) 1. First gateway: Deemed SI: 335(1) or (2)(a) If worker lodges IB claim with injury assessed at 30% WPI or more of a primary physical or psychological injury= deemed SI: Pt 7 Div 2 WIRC 2. Second Gateway: Less than 30% but VWA agrees to SI: s335(2)(c) If worker has IB less than 30% WPI or has not lodged an IB claim, but VWA agrees that Worker has a SI. 3. Third gateway: Narrative Test Court may grant leave if they consider worker to have a SI: s335(2)(d) 1. Identify compensable injury: Humphries v Poljak: Barwon Spinners 2. Identify impairment, disfigurement or mental/behavioural disturbance and assess whether permanent: s325(1)(a)(b)(c)(d) 3. Identify consequences of impairment, disfigurement or mental or behaviour disturbance:325(2)(b) 4. Assess whether the consequences meet or exceed the relevant ‘narrative test’ for each of P&S and LOEC NB: must disentangle P&S attributable from physical and psychological injuries: Barwon Spinners Once established SI, need to prove negligence to be successful in claim for compensation.

TRANSPORT ACCIDENT CLAIMS SCHEME TABLE VALID FOR INJURIES AS RESULT OF TRANSPORT ACCIDENT AFTER 1 JAN 1987: s34 NO FAULT SCHEME- STATUTORY BENEFITS FAULT SCHEME- COMMON LAW Workers eligible for statutory benefits of: Statute of Limitations: must lodge claim within 6 years from DOI: s5(a) of the Limitation of Actions Act 1958 • Two types of loss of income benefits: • Claim can be lodged with IB claim: X Requirements for bringing actions under s.93 • Loss of earnings (‘LOE’) period of entitlement: ss44,45; and 1. That the injured person, or dependant, bringing the action is a ‘natural person’: s93(1A); • TAC not liable to pay LOE for first 5 days: s43(1)(a) unless acute hardship is est.: s43(2) 2. That the injury was ‘as a result of a transport accident’: s93(1) • Eligible for LOE payments from day 6 (since DOI) to 18 month mark 3. That the Commission has determined the degree of impairment of the claimant: s93(2); • Total LOE vs partial LOE rates: 4. That the injury is a ‘serious injury’: s93(2) o Total: 80% of earners PAWE (pre-accident weekly earnings) or Dependency rate*: s44(2) SERIOUS INJURY (‘SI’) o Partial: greater of 85% of the difference between earner’s current weekly earnings (CWE) and their PAWE or 1. First gateway: Deemed SI: s93(3) Dependency rate*: s45(2) If claimant lodges IB claim with injury assessed at 30% WPI or more of a primary physical and/or psychological injury NB: s.44(2)- rate for LOE must not exceed the lesser of the PAWE or prescribed amount* (*subject to indexation) =deemed SI. • Loss of earnings capacity (‘LOEC’): ss46, 49, 50, 50A, 51, 54A; • Eligible for LOEC payments from 18 month mark to 3 year mark from DOI subject to TAC review: s46 2. Second Gateway: Less than 30% but TAC agrees to SI: s93(4)(c) • Eligible for LOEC payments post 3 year mark to retirement age if deemed 50% or more impaired: s53(2) OR ongoing If claimant has IB less than 30% WPI or has not lodged an IB claim, but TAC issues a consent certificate: s93(4)(c). LOEC:ss49(1), 50(1), 51(1) • Total LOE vs partial LOE rates: 3. Third gateway: Narrative Test: ss93(4)(d) and (6) o Total: 80% of earners PAWE (pre-accident weekly earnings) or Dependency rate*: s49(2) o Partial: greater of 85% of the difference between earner’s current weekly earnings (CWE) and their PAWE or Court may grant leave if they consider claimant to have a SI and bring proceedings: ss93(4)(d) and (6) 1. Identify the injury: s93(1) Dependency rate*: s50(2) 2. Identify impairment, disfigurement or mental/behavioural disturbance and assess whether permanent: NB: s.44(2)- rate for LOE must not exceed the lesser of the PAWE or prescribed amount* (*subject to indexation) s93(17): Humphries v Poljak, Barwon Spinners (‘long-term’) • Medical & like expenses: s60 &23 3. Identify consequences of impairment, disfigurement or mental or behaviour disturbance: Humphries v Eligibility criteria: reasonable costs of road accident rescue, medical, hospital, nursing, personal and household, Poljak, TAC v Kamel, Richards v Wylie (agg. of pre-existing: Petkovski v Galletti) occupational rehabilitation and ambulance services received. 4. Apply the narrative test’s 3 reference points: s93 (interpreted through Humphries v Poljak) • Lump sum impairment benefits (‘impairment benefits claim’): s46A-48 a. P&S and LOEC consequences to injured person of impairment; • TAC must determine degree of injury resulting in permanent impairment: s46(A) b. These consequences must be ‘judged by comparison with other cases in range of possible • IB claim can made post 3 years after the accident or if deemed stable (whichever comes first): s46(A)(1)(a) impairments’ etc • Exception: Minor claims: claimant must be 18 y.o and stable or 21 years (whichever occurs first):46A(1)(b) c. When so judging, an impairment (or behavioural disturbance or disorder) ‘shall not be held to • Deemed 0% IMP: 6 years passes from DOI or if minor turned 18 w/o TAC initiating an assessment: claimant be serious unless the P&S or LOEC consequence is ‘fairly described as being more than deemed to have degree of impairment of 0% :ss46A(1) and (1B) significant or marked, and as being at least very considerable’ in the case of an imp/loss of body Threshold for compensation: function or disfigurement. • Degree of impairment must be more than 10% to qualify for compensation:47(1) for primary injuries only: s46B(1) • (or ‘more than serious to the extent of being severe’ in the case of mental behavioural NB: can combine physical and psychiatric injuries to meet threshold and can combine impairment from multiple disturbance/disorder) accidents to meet threshold (treated as one accident): s48(4) NB: Richards v Wylie- TAC does not preclude secondary psych consequences being considered here. • Death benefits: ss 57-59, 60 No threshold for LOEC in TA Act. Dependants are eligible for the following (of award of damages have not been made): s.94 CLAIMS o A lump sum benefit: s57; • Can use s94 (TAC Indemnity) for TAC CL claims: TAC to indemnify unidentified/unidemnified driver at fault (s96) or is o Weekly payments (if deceased was an earner): s58 (for 5 years or until dependant partner reaches pension age dead or has been wound up (if a company). (which ever occurs first), however will continue if dependant partner has a dependent child • Can also use s.94 for: use of claims (not driving motor vehicle) under Wrongs Act 1958(Vic) w/o restrictions in W Act o Dependent children (who are not dependent child or parent receiving payments above) are entitled to: s59 re: caps (Pt VB), thresholds (Pt VBA) and TA Act re: ‘SI gateways’ in s93, but cannot claim no-fault benefits under TA § Education allowance, Weekly payments and a death benefit Act: Hynes v Hynes (VSCA 2007). o ‘reasonable costs’ incurred in Australia of a funeral, burial, cremation, monument or any other expense: s60(2A)

WC/TAC CROSS OVER CLAIMS: VWA PAYS FOR STATUTORY BENEFITS: s38 TA Act and TAC PAYS FOR COMMON LAW = s.326(a)(i)WIRC Act...