Can I claim for an ‘incapacity’ under a workers compensation scheme even though I can still do some work?

If you suffer an injury at your work, you may still be entitled to receive WorkCover payments even if you are not totally incapacitated.

Under the Victorian WorkCover legislation, an employee is not incapacitated if they can return to ‘suitable employment’.

A number of factors are relevant to whether a job is ‘suitable employment’.  These include:

• the kind of incapacity the employee has;
• the kind of work performed before the injury; and
• the employee’s age, education, skills and experience.

If you have suffered a workplace injury and have been unable work in the way you were used to, you should not be too quick to conclude that you can claim for ‘incapacity’ under the WorkCover scheme.

In Barlow v Melbourne Inner City Management the plaintiff argued that she was incapacitated because, after suffering a psychiatric injury caused by workplace bullying, she was not able to return to work alongside to her manager.

This argument failed because the court found the plaintiff’s ability to earn had not been reduced by the injury. Ms Barlow was still able to find a similar job ‘on the open market’, and could even have returned to work with the defendant.

If you are finding it difficult to determine whether you have a complete or partial incapacity for work, you may benefit from receiving legal advice.