Establishing that you have a suffered a Serious Injury under the law is the first step in a common law claim. A common law claim refers to an injured worker who sues their negligent employer and/or a third party for their pain and suffering and loss of earning capacity (also known as, economic loss).

In Victoria, in order to succeed in a common law claim, a worker must establish that:

1. They have suffered a Serious Injury; and
2. The Serious Injury was caused by the negligence/fault of their employer and/or a third party.

An injured worker can only sue in Victoria for common law damages in circumstances where a Serious Injury Certificate is either deemed (that is, with a whole person impairment of 30 per cent or more) or, as is more commonly the case,  granted by WorkSafe or a judge. This is the very first step in obtaining compensation under the common law system.

What is a Serious Injury Certificate and how do I get it?

There are three ways in which you can obtain a Serious Injury Certificate. Firstly, a worker will be ‘deemed’ to have a Serious Injury if they assess at 30 per cent or more whole person impairment in an Impairment Benefit claim.

Alternatively, a worker can obtain a Serious Injury Certificate by way of application to WorkSafe. This application includes an Affidavit from the worker, medical material and taxation returns. The worker in these circumstances must satisfy the “narrative test”, that is, outline a history of the injury and establish that the ongoing consequences of the injury are indeed “serious.”  Case law indicates that “serious” is interpreted as being at least very considerable and more than significant when compared with other cases.

If you are seeking compensation for loss of earning capacity, an additional test applies. The worker must also establish that after rehabilitation/retraining, the worker has permanently lost 40 per cent of their earning capacity.

In circumstances where WorkSafe is not satisfied that the worker meets the narrative test, and denies a worker’s Serious Injury Application, an application can be made to the Court in a proceeding called an Originating Motion. Here, the worker will be required to give evidence about the consequences of their injury and the matter will be decided before a judge alone.

What if I have multiple work-related injuries?

Under the law, it is not possible to combine the consequences of multiple injuries to form one Serious Injury. For instance, you cannot combine the consequences of your work-related psychological condition with your work-related shoulder condition to meet the test. Each of these injuries must be “serious” in their own right to be eligible for compensation.

What if I have non-work-related injuries?

It is possible to obtain a Serious Injury Certificate even if you have separate injuries that are unrelated to your employment.

Case Study

Our client, who did not have a deemed Serious Injury, made a Serious Injury application which was denied by WorkSafe. We issued proceedings by way of Originating Motion in the County Court.

In July 2017, our client sustained a neck injury whilst transferring a patient on a lifting machine that tilted and hit her. She later sustained a non-work-related knee injury in August 2018 which required surgery in September 2018. She resigned from her pre-injury employment and took up a new, lighter role before resigning in March 2020 to travel overseas. Whilst overseas, she sustained a further unrelated right shoulder injury that required an injection in February 2021.

The questions at Court were as follows:

• Whether our client’s evidence will be accepted
• Which of the medical opinions should be accepted
• Whether our client continues to suffer a neck injury caused by the incident
• The impact and disentanglement of our client’s right knee and right shoulder injury; and
• Does the neck injury constitute a “Serious Injury”?

The Court found that, although our client’s answers were not fluid, she did not try to mislead or embellish. The Court ultimately found her to be a credible witness as she reported her non-work-related conditions to treating and independent doctors.

It was also decided that the evidence of her treating and medicolegal doctors was to be preferred over the Defendant’s doctors, as they had a more balanced and consistent picture of our client’s condition.

It was accepted that, although there was a break in our client’s treatment for some time as she dealt with other health and personal concerns, she continued to suffer from consequences arising from her neck injury requiring treatment. Her condition was found to be permanent six years post incident.

The Court found it important to disentangle the consequences of her unrelated right knee and right shoulder injuries and accepted that:

• Her neck injury was the main injury that impacted her sleep
• Her standing or walking intolerances are due to her right knee, however, our client experiences discomfort with static postures as a result of her neck. This includes activities such as using a computer, helping her children with homework, driving and reading
• She could no longer attend the gym due to her neck injuries
• She could no longer help at her children’s school, help at the local temple and avoids hosting social events at her home due to her neck injuries.

It was found that our client’s neck impacted many facets of her life, independently and separate to her right knee and right shoulder conditions. It was ultimately decided that our client had a Serious Injury when considering her neck injury, and disregarding her other non-work related conditions, she was a granted a Certificate to pursue compensation.

Key takeaways

• It is possible to claim a Serious Injury in circumstances where you have multiple injuries (including non-work-related injuries)
• Be frank and honest about other injuries
• Consider the consequences of your work-injury and distinguish those from your other injuries.

Contact us

If you or someone you know have suffered from a work-related injury, it is important to seek legal advice from an experienced personal injury lawyer as soon as possible. Redlich's Work Injury Lawyers offer a free, no-obligation consultation. To make an appointment, contact our advice line on (03) 9321 9988 or submit an online enquiry today.