New workers comp laws – why you need a lawyer https://www.arnoldthomasbecker.com.au/wp-content/uploads/2024/07/Workers-Comp-video2.mp4 New changes to the workers compensation law have created the greatest reduction in support for injured Victorians in decades. Around 70 to 80 per cent of injured workers return to work after an injury with minimal difficulty and usually without any long-term issues. But the new changes to WorkCover are leaving behind those workers who can’t return to work. For the first time in the past 60 years, totally and permanently incapacitated workers in Victoria will, for the most part, be unable to receive long term income support. After 31 March 2024, the safety net for seriously injured workers has been all but removed and replaced with a harsher and stricter legal test to remain on weekly payments after two and half years (130 weeks). What does it all mean? The new “Modernisation legislation” introduces a Whole Person Impairment (“WPI”) threshold of greater than 20 per cent, alongside the existing work capacity test for injured workers to remain entitled to weekly payments beyond 130 weeks. This effectively means that the vast majority of injured workers will now be excluded from remaining on income support after two and a half years. Whilst the government has refused to release the amount of how many workers will be impacted by the new Modernisation laws, some estimates say that in Victoria, over 1,700 injured workers will have their weekly payments terminated after 130 weeks every year. Our experience is that all injured workers who remain on weekly payments will be reviewed for ongoing eligibility to see if they satisfy not only an ongoing incapacity to work, but an arbitrary and onerous test of a medical impairment of more than 20% WPI. More than 20% WPI – what it means Injured workers who remain on weekly payments will now be forced by their claim’s agent to undergo a Whole Person Impairment (WPI) assessment to review their ongoing eligibility. The assessment is undertaken with reference to the AMA Guides to the Evaluation of Permanent Impairment (4th Edition) (or the “AMA guides”) for a physical injury or the Guide to the Evaluation of Psychiatric Impairment for Clinicians (or the “GEPIC”) for psychiatric injury. For example, the doctor might ask the injured worker to perform tests to measure the range of motion of the affected body part. The doctor then describes and verifies the complaints or symptoms which in turn are categorized into estimated whole person impairment (WPI). Based on our experience in assisting thousands of injured workers obtain impairment compensation, very few injuries result in an impairment rating greater than 20%. For example, the following injuries would attract the below Whole Person Impairment ratings and would not meet the new test: Back injury with multiple spinal fractures (20%) Knee replacement (20%) (but can also be as low as 15%) Total shoulder replacement (18%) Amputation of index, ring and finger of one hand (20%) Amputation of all toes both feet (17%) Total hip replacement (15%) Will it affect psychological injuries? For psychological injuries the new test is just as hard. To be assessed as having over 20% impairment, an examiner will need to find that an injured worker has mood symptoms commensurate with frequent anxiety attacks, persistent suicidal ideation or attempts, psychomotor retardation or agitation, and hypomania. “Pain and suffering” is not factored into a 20% WPI “Pain and suffering” is not factored into a 20% WPI, and neither are pain syndromes or conditions. The AMA guides do not include pain in their assessment, even if a worker is diagnosed with a chronic pain syndrome or condition (including complex regional pain syndrome). This means that workers with severe pain symptoms who are incapacitated as a result of such conditions will not reach the required 21% impairment threshold. There are also injuries that are not assessable under the AMA guides, such as rib or coccyx injuries. We urge that you obtain our legal representation in the event you are asked to attend an assessment for your Whole Person Impairment. The new changes are drastic and difficult to understand, even for claims agents. As such, if you have received a notice that you are “not likely to achieve a 21% Whole person Impairment” we strongly recommend that you obtain our legal representation as you may have significant compensation entitlements available to you. What is happening now? If you are on weekly payments, you may now receive a notice from the claims agent that you: have an upcoming “130 week review” which will reference the need to have “an impairment of 21% or more” need to attend an independent medical examination to assess your Whole Person Impairment are “not likely to achieve a 21% Whole Person Impairment” will be terminated from weekly payments at a future date based on a prior Whole Person Impairment that was less than 21% will remain on weekly payments after 130 weeks as you have a Whole Person Impairment of more than 21% If you receive one of these notices, we strongly recommend that you obtain our legal advice. An injured worker can only have one impairment determination which will be the final determination of their impairment throughout the life of their claim. This means it has never been more important to speak with a lawyer to make sure you are getting the maximum entitlements possible, because if you miss out you will not get a second chance. The good news – you have options You may also be entitled to a lump sum payment for your pain and suffering and past and future loss of earnings. To be successful, you must demonstrate that you have a serious injury and that another party, such as your employer, was negligent in causing your injury. You do not need to have an impairment of over 20% (or over 30%) to obtain a serious injury. The vast majority of injured workers who obtain a serious injury do so with impairments far less than 20%. You can have a 18%, 5%, 2% or even a 0% Whole Person Impairment and still have a serious injury and the entitlement to receive significant lump sum pain and suffering and economic loss damages. For example some real client outcomes: A truck driver with a wrist injury who was assessed as having a 2% WPI but still received $80,000 for his pain and suffering A nurse who suffered psychological injury and was assessed as having a 10% WPI but still received $425,000 for her pain and suffering and economic loss You may also be entitled to a Total and Permanent Disability claim if you are unable to work again. We have a dedicated Superannuation team ready to provide advice if you are unable to return to work. We recommend that you seek legal advice now, don’t wait for the claim’s agent to: review your entitlements without being legally represented. request you attend an examination independent doctor to assess your Whole Person Impairment without being legally represented. do a desk top assessment of whether or not your injury will likely meet 21% without providing you options about lump sum compensation. not take into account pain and suffering to forever terminate future income support without obtaining advice about alternate lump sum claims. tell you that you will remain on weekly payment after 130 weeks without getting advice about a claim for pain and suffering and past and future economic loss Contact us The worst outcomes happen when injured workers feel unsupported and unrepresented. If you don’t feel like you are at the centre of your own claim, that the agent has taken control of your future, then talk to us. You can speak to a lawyer today by calling 03 9034 8433 or sending us a message at [email protected] For more information, visit our Workers Compensation page.