This is a question that we are often asked, and we understand that this issue can cause some confusion. We also understand that some personal injury law firms that dabble in super TPD work advise their clients to wait until the WorkCover claims have finished before lodging a TPD claim or Income Protection claim.
However, in our experience, it is seldom necessary to wait until a WorkCover claim has been resolved before making a TPD claim.
What WorkCover benefits may interact with TPD or Income Protection?
There are a number of different WorkCover benefits that you may be able to claim if you have ceased work due to a workplace injury:
- Weekly payments for lost wages (an income-based benefit);
- Impairment benefits (lump sum compensation payable for permanent impairment, even if the injury is not your employer’s fault); and
- Common law claim (lump sum compensation payable if your injury is the fault of your employer).
There are different ways that each of these benefits can interact with TPD and Income Protection claims.
Do I have to finalise my WorkCover claim before lodging a TPD claim?
There is no legal or other requirement that you delay making the TPD benefit while the WorkCover claim is being assessed.
However, you must be mindful that any information you submit to your TPD insurer may end up in the hands of your employer or WorkCover insurer. Therefore, if you suffer a work-related injury while, at the same time, suffering another non-work-related medical condition, you may decide to wait to lodge the TPD claim.
This is because a TPD claim can be brought with respect to all of the medical conditions that impact your work capacity (that is, both the work injury and the non-work-related injury). But a WorkCover claim can only be brought for conditions that are work related. In other words, by including all of the conditions which impact on your work capacity when you make a TPD claim, you increase your chances of success on this claim. On the flip side, including non-work-related conditions in your worker’s compensation claim may negatively impact your Workcover claim.
With all that in mind, in our experience TPD and WorkCover claims can be brought together, even where non-work-related conditions are involved. We often work with WorkCover lawyers from other firms to bring claims side by side. Care must be taken to ensure that the information provided in support of the TPD and WorkCover claims is consistent and doesn’t jeopardise either claim, but this is almost always possible with the right advice and guidance.
It can sometimes take years for a WorkCover claim to finalise, whereas the timeframes for successfully making a TPD claim are usually much less. Therefore, rather than unnecessarily delaying your TPD claim, it’s better to get advice from experts about the best way to make your TPD claim alongside your WorkCover claim.
Accessing a successful TPD payout while on Workcover?
Whilst claiming a TPD benefit alongside a Workcover claim is usually OK, accessing the TPD benefit once it is paid into your super account can sometimes present issues in Victoria.
This is because withdrawing money from super early usually offsets WorkCover weekly payments. A TPD benefit, once approved, will usually be paid into your super account and you then access it from your account. However, in our experience accessing the TPD benefit only (and not the account balance) will usually not impact on your WorkCover entitlements, but we also get permission from the WorkCover insurer first.
This issue is unique to Victoria and not present in other states or territories.
Can I claim WorkCover and Income Protection benefits at the same time?
Claiming Income Protection while on Workcover weekly payments
There is not usually any point claiming a WorkCover weekly benefit alongside an income protection benefit because they are both income-based benefits and offsets will apply (i.e. the income protection benefit will be reduced because the WorkCover weekly benefit is already being paid to cover your loss of wages).
The WorkCover weekly benefit payment is normally a higher amount than any Income Protection benefit, so it’s usually best to prioritise the WorkCover payment.
However, there are some exceptions to this rule; for example, if your income before you ceased work was greater than the maximum rate of weekly payments available under the WorkCover scheme, and you have a corresponding amount of Income Protection insurance, it will be better to claim both benefits and get the Income Protection payment to top-up the WorkCover weekly payments.
Also, if you have multiple medical conditions (some of which are not work-related) or there is some uncertainty about whether or not WorkCover will accept liability for your WorkCover weekly payments claim, you may prefer to lodge the Income Protection claim over the WorkCover weekly payments claim.
It can be complicated to work out what best suits your specific circumstances. We can provide you with free advice to help determine what course of action you should take.
Income Protection impact on a worker’s compensation permanent impairment claim
There is usually no direct impact caused to a worker’s compensation lump sum impairment benefit claim by an Income Protection benefit claim. There is no offset and, otherwise, no connection between these two claims.
However, as with TPD claims, any information (including medical information) exchanged in support of the income protection claim may become available to the WorkCover insurer and should be consistent.
Income Protection impact on worker’s compensation common law claims
In most cases, if you receive a worker’s compensation common law settlement whilst you are receiving income protection benefits, there will be some sort of reduction in your income protection benefits.
How the offset/reduction works depends on the wording of your particular income protection insurance policy. However, there is not normally any impact on your common law claim due to claiming income protection benefits.
Get help from a TPD and Income Protection lawyer
As you can see, there can be some complications when seeking insurance benefits like TPD and Income Protection while on worker’s compensation. If you’re unsure about how your TPD or Income Protection claim may impact your worker’s compensation claim, you should seek legal advice.
We provide free advice and run claims on a ‘no win no fee’ basis with no upfront fees. So, it costs you nothing to find out where you stand.
Contacting Berrill & Watson
📞 Melbourne: 03 9448 8048
📞 Brisbane: 07 3013 4300
📞 Anywhere else in Australia: 03 9448 8048
How we charge
We are Australia's best-value superannuation/insurance law firm. Other law firms charge nearly double (& sometimes more than double) what we charge. So, if you get a quote from them, or have a cost agreement, ask us what we will charge you.
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