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VIC Am I Entitled to a Workcover Claim?

Discussion in 'Personal Injury Law Forum' started by Sickooli, 2 June 2016.

  1. Sickooli

    Sickooli Active Member

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    Hi,

    I am a self-employed tradesman ( sole trader). I was painting a house for a volume builder (sub-contract) when at the end of the day, when I was packing up, I slipped on the front porch/entry of the house and caused a lot of injury to my knee, back, head and right arm. I am in a lot of pain and my mobility is restricted.

    I have put in a claim for workcover and some people are saying that I am on my own as I have not a total of 80% wages from this builder. A solicitor l saw would not give me advice until I was sure about the wages because he said to me that if my wages, since I started with this builder until time of injury, is not 80% of my wages i.e. 80% of my wages must have come from this builder I cannot put in a claim.

    l called worksafe and they told me basically the same, but one other consultant from worksafe said that l can still claim if l pass their assessment tool online. I did pass it and it said basically that, "according to your answers (information) you provided, it is likely you are a worker of the employer/hirer".

    Can someone please help me on this and also could you please refer me to the best legal office in Melb to help me?

    It will be greatly appreciated.
     
  2. Rod

    Rod Well-Known Member

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    Have Worksafe responded yet to your claim?
     
    Sickooli likes this.
  3. Tim W

    Tim W Lawyer

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    Be clear - if you are a sole trader subbie, then you are not "wages".
    But if you are pretending to be a contractor so that your actually-an-employer can evade their obligations, then you might be
    Which is it?

    The Worker and Contractor Assessment Tool is in part based on the ATO's tool,
    which does the same thing, albeit for tax purposes, rather than compo.
     
  4. Sickooli

    Sickooli Active Member

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    Not yet
     
  5. Sickooli

    Sickooli Active Member

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    Correct, I am not on wages, and I am not pretending anything. l sub-contract work from the builder.
     
  6. Rod

    Rod Well-Known Member

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    I wouldn't get too anxious just yet if you've not heard back from Worksafe.

    There is also a possibility of suing for damages under a negligence claim IF the building site was unsafe. If it was rain that caused the slip don't like your chances, if it was something else (loose material, oil etc) you may have a chance.

    I take it you don't have your own insurance cover.

    I'm not an insurance expert, but wondering if the builder might have any kind of 'site insurance' that may help you.
     
  7. Sickooli

    Sickooli Active Member

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    Thanks for that. It was muddy that was created by other trades, in and out of the house with mud on their feet, and it rained which made it very slippery. l slipped at front entry.
     
  8. Yevgeni

    Yevgeni Well-Known Member

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    Hi,

    You should also investigate a potential public liability claim against the owner occupier of the premises where you had your slip and fall, as it may be a viable case depending on the facts of the matter and what caused you to slip and fall. If the owner/occupier has public liability insurance as an extension under his/her home and contents policy then their insurer will simply take over the conduct of the matter and you would not have to deal with them directly.

    I have acted for numerous clients in similar circumstances, as you are usually better off under the public liability regime, given the seriousness of your injuries as opposed to the workers compensation regime. It does not mean that you cannot claim your workers claim entitlements at the same time you are investigating a public liability claim, if you are entitled to workers compensation and whatever you claim from workers compensation simply gets paid back to the workers compensation insurer at the conclusion of the matter if you recover damages in the public liability claim.

    On the other hand, if the owner/occupier does not have insurance or assets then event if you win you public liability claim, it may be worthless.

    You have suffered serious injuries by the sounds of it which may have a significant impact on you future earning potential and your ability to carryout your job, so it is best to investigate it. As to whether you would have a claim or not, would depend on the circumstances of you accident.

    Hope the above helps,
     
  9. Sickooli

    Sickooli Active Member

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    Thanks yevgeni, I never thought of that. If successful would I get weekly payments on his public liability insurance? Or how does this work?
     
  10. Yevgeni

    Yevgeni Well-Known Member

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    No. In public liability personal injury claims you do not get weekly payments. You get a lump sum of money made up from various heads of damage such as:

    1. Non-economic loss, which is your pain and suffering provided you reach the requisite statutory threshold (what state did the accident occur?);
    2. Past and future out of pocket expenses (such as treatment expenses etc);
    3. Past and future economic loss; and
    4. Past and future domestic care and assistance.

    These cases are not easy, but if you do not have a workers compensation claim definately worth looking into given that you have serious injuries which might affect you into the future and in my experience your entitlements are a lot better under common law as opposed to workers compensation.

    How did the accident occur? In particular:

    1. What caused you to slip?
    2. Was it raining on the day and was there water on the porch.
    3. Is the porch tiled? What is it made up of?
    4. What shoes were you wearing and were they in good condition?
    5. Have you been to the porch before?
    6 Did you actually slip on the porch or did you mis a step and lose your footing?
     

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