Why has WorkCover rejected my workers compensation claim?

If you’ve lodged a WorkCover claim in Victoria and it’s been rejected, it’s important to know why the insurer may have denied your claim. Understanding the reason your claim is rejected, can maximise your chances of a successful appeal of that decision. In this blog, we explore some of the primary reasons a workers compensation claim may be rejected.

You can also read our blog, “What to do if your WorkCover claim is rejected”, to learn your options for appealing the decision.

A worker injured in the course of their employment must report the injury to their employer within 30 days of becoming aware of the injury. The simple step of not reporting the injury within this time can be grounds for rejecting a claim.

There are other reasons why a WorkCover insurer would not accept a claim, including:

1. The injured person is not a worker as defined under the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”);
2. The injury did not arise out of or in the course of employment;
3. There is no physical and/or mental injury; and/or
4. There is no connection to the State of Victoria.

For mental injuries, another reason that a WorkCover insurer can reject a claim is if the defence of reasonable management action applies. This is discussed further below.

A worker is defined as an individual who performs work or agrees to perform work at the direction or request of an employer.  A worker can be a part-time, full-time or casual employee of a business. A worker can also be special groups of people that are specifically referred to in the Act including jurors, volunteer firefighters, students, sporting contestants.

A worker is different to an independent contractor. Independent contractors work for themselves. They have their own tools and are paid by quotations or invoices for the work they do. Independent contractors are not paid superannuation, nor are they able to access leave entitlements. Independent contractors are not considered workers under the Act.

There is, however, a rule under the Act that allows contractors to access WorkCover entitlements where the contractor receives 80% of their gross income from the services provided to the employer during a relevant period (12 months).

A common misconception is that workers that receive their income in cash are not able to access WorkCover because they are “off the books”. This is not true.

Many industries such as hairdressing and retail pay workers cash in hand. You can still access WorkCover benefits if you receive cash in hand. You need to be sure you are doing the right thing, however, by declaring your income for tax purposes and by obtaining payslips.

If your claim is rejected due to being paid cash-in-hand”, you must provide documents that prove you are a worker (as defined under the Act). Such documents include a contract of employment, payslips, text messages/emails requesting work to be done etc.

The injury must be linked to your employment in some way.

There are clear circumstances where you are working and sustain your injury from doing your work; for example, lifting a box and injuring your back. There are other circumstances that are not as clear; for example, where your injury developed gradually throughout the course of your employment.

You can read more about this in our article, “WorkCover claims when it’s not clear if you were ‘working’ at the time of injury.”

You can sustain a work-related injury if you are injured during your lunch break or an authorised recess or if you are involved in a car accident on your way to have lunch or on your way to a work function.

Often it will be clear that your injury is linked to your employment based on what happened. However, if your claim is rejected for ”not being linked to your employment”, you will need supporting medical reports from your doctors, linking your injury to your employment.

During the investigation of your claim, the WorkCover insurer arranges for you to be examined by independent medical examiners who assess your injury. Make sure you give the examiners a concise explanation of how the injury happened.

By signing your WorkCover claim, you are authorising the WorkCover insurer to request and access your medical records. These medical records are used to determine whether you had complained about the work incident to your doctors and other information about your injury and treatment requirements. They are also used by the WorkCover insurer as part of the process of determining if your injury is linked to your employment.

You may be prevented from claiming WorkCover benefits under section 41 of the Act on the basis that you did not disclose a pre-existing injury or disease that could affect your employment where your employer has requested disclosure of all pre-existing injuries in writing.

The definition of “injury” is provided under section 3(1) of the Act. It covers any:

• physical injury;
• mental injury;
• industrial deafness;
• disease contracted by a worker;
• a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

Mental injury can include work-related stress or any other psychiatrically diagnosed condition.

Industrial deafness can be caused by exposure to industrial noise. Claims for industrial deafness are assessed slightly differently to other injury claims.

In order to be compensated for an aggravation of a pre-existing injury or disease, you must show that your employment was a significant contributing factor to the disease.  For example, if a person sustains a heart attack from work-related stress, to be compensated they must show that their employment was a significant contributing factor. It does not need to be the only reason that they sustained a heart attack but it does needs to be a substantial or dominant reason.

If your claim is rejected for this reason, you will need supportive medical reports from your treating doctors such as your GP or your psychologist, which confirm the diagnosis of your injury and the cause.

The fact that your employer’s head office is in another State does not prevent an entitlement to compensation under the Act in Victoria.

For example, if your employer’s head office is in Sydney but you usually work in Melbourne, then this is enough to say that your employment is connected to the State of Victoria. WorkCover insurers are often quite quick to say when their jurisdiction does not cover your particular employment arrangement because they will want to pass the torch onto another insurer.

Rejected claims on the grounds of “no connection to Victoria” are not common. However, if your claim is rejected for this reason, a contract of employment will be a helpful document to confirm under which State or Federal laws your employment arrangement is governed.

The circumstances of each case rests on its own facts. However, there are common reasons for the WorkCover insurer to reject claims for mental injuries.

Firstly, the reporting requirement is essential to a mental injury claim. Your employer must be aware of your injury well before you lodge your claim. If your employer was not aware of your mental illness, then your claim will likely be rejected.  Your employer will have a Koehler defence in these circumstances, which means they may not be liable for your injury.

Secondly, a claim can be rejected if it is alleged that an injury was wholly or predominantly caused by “reasonable management action”.

“Reasonable management action” refers to actions by the employer such as performance reviews, disciplinary actions or any act that would be considered lawful and reasonable direction by your employer. You must be able to prove that the management action was not lawful or was not reasonable.

You should carefully read the letter from the WorkCover insurer rejecting your claim, and ask for copies of the medical reports and documents that they have taken into consideration when determining to reject your claim.

It is always recommended that you keep a diary or journal detailing particular incidents that happened in the workplace, for example:

• when you reported your injury or illness;
• the incidents that happened with management; and
• how and when management responded to your complaints.

The WorkCover insurer has 28 days to respond to your claim. Within that time, they will arrange for you to see independent medical examiners and will investigate your claim.

The insurer sometimes engages the services of an investigator who reviews the circumstances of your injury. You will be asked if you would like to make a statement to the investigator. You are not legally obliged to make a statement. If you do make a statement, it will be used as evidence in a court.

If you do not make a statement during the 28-day period of determining your claim, you can still make a statement after your claim is rejected. However, our recommendation is not to make a statement at any point, given you are not legally obliged to do so.

If your WorkCover claim has been rejected, there may be options for you to appeal that decision to the Accident Compensation and Conciliation Service. At Polaris, we’ve helped many Victoria workers successfully appeal an insurer’s decision to reject a claim. Call us on 1300 383 825 for a free consultation to explore your options. It costs you nothing to find out where you stand.