Published: 28 August 2019
Author: Kate Malone
Aggravation of a pre-existing injury - are you entitled to WorkCover?
Are you entitled to receive WorkCover support if you have aggravated a pre-existing injury at work?
The short answer is "yes". This blog explains how best to make a claim.
The WorkCover legislation states that a worker is entitled to receive compensation if they sustain a “recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease” and their work was a significant contributing factor to this. You are covered for these types of injuries, because the aggravation of your pre-existing injury is considered to be a material change to your condition, so it is considered a new injury altogether.
In some cases, the pre-existing injury may have been sustained at home, at work with a previous employer or while working for your current employer. The cause and location of your pre-existing injury are not relevant, and you should still be entitled to receive WorkCover entitlements so long as the aggravation happened whilst you were at work.
When your pre-existing injury was sustained at work (either with your current employer or a previous employer) and you received WorkCover entitlements for the pre-existing injury, it may be best to seek reinstatement of the pre-existing claim and claim number through the WorkCover Insurer for a work-related aggravation.
Sometimes the WorkCover Insurer will resist this though on the basis that it is a new injury. If this is the case then a new WorkCover claim form may need to be lodged.
In some situations, our workplace injury lawyers see the opposite problem arise in relation to an aggravation. That is, that the pre-existing injury occurred during the course of your previous or current employment, but the aggravation of symptoms occurred while you were at home or otherwise not engaged in work.
In these situations, while your initial injury was connected to your work, you are unlikely to be entitled to receive WorkCover entitlements as the WorkCover Insurer is likely to claim that the aggravation of symptoms that you experienced outside of the workplace constitutes a new injury that is not work-related.
Common law claims for pre-existing injuries
For the purposes of pursuing a common law claim for damages, it must be shown that you are suffering from a “serious injury” that was caused by the fault or negligence of your employer.
In claims relating to an aggravation of an injury, you must be able to separate the effects of the pre-existing injury and the aggravation of symptoms and show that the consequences from the aggravation alone are serious.
To do this, a court would need to look at your condition before and after the pre-existing injury and also your condition before and after the aggravation of the injury. It is not enough to show that you have a “serious injury” as a result of the consequences flowing from the pre-existing injury and the aggravation combined.
You must also show that the aggravation of your injury, not the pre-existing injury, occurred through the fault or negligence of your employer.
Sustaining an aggravation of a pre-existing injury can understandably cause confusion for an injured worker and the pathway forward is not always clear-cut. The best way to navigate this sometimes complicated situation is to consult a personal injury lawyer who can provide you with advice about your options going forward.
If a pre-existing injury has been aggravated due to your working conditions and you would like to talk to a legal expert about your eligibility to make a WorkCover claim please call us on 1300 366 441 to arrange a free first consultation.