2.1.3 Exceptions to entitlement or entitlement only to reduced compensation

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2.1.3.1 Self-inflicted injuries | 2.1.3.2 Serious & wilful misconduct | 2.1.3.3 Driving offences | 2.1.3.4 Failure to disclose pre-existing injuries and diseases | 2.1.3.5 Worker ceases to be employed

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This section outlines the circumstances under which a worker is not entitled to compensation or their entitlement to compensation is reduced.

2.1.3.1 Self-inflicted injuries

If an injury to a worker is proved to have been deliberately or wilfully self-inflicted, there is no entitlement to compensation in respect of that injury.

This applies whether or not the injury was intended to be inflicted.

2.1.3.2 Serious & wilful misconduct

There is no entitlement to compensation if it is proven that the worker's injury was attributable to the worker’s serious and wilful misconduct (including but not limited to, being under the influence of intoxicating liquor or a drug).

Compensation payable for death or a severe injury

The exception is if an injury results in death or a ‘severe injury’, in which case there may be an entitlement to compensation.

A severe injury means:

• a significant acquired permanent brain injury
• permanent paraplegia
• permanent quadriplegia
• amputation of a limb, hand or foot
• full thickness burns that:
• cause permanent severe disfigurement to the head or neck or an arm or a lower leg or
• result in a significant permanent inability to undertake the necessary activities of daily living
• an injury that results in permanent blindness

Permanent blindness means:

• a field of vision that is constricted to 10 degrees or less of arc from central fixation in the better eye, irrespective of corrected visual acuity
• a corrected visual acuity of less than 6/60 on the Snellen Scale in both eyes or
• a combination of visual defects resulting in the same degree of visual loss as referred to in the above two points
• a brachial plexus injury that results in the permanent effective loss of the use of a limb
• a physical internal injury that results in a significant permanent inability to undertake the necessary activities of daily living.

Proof of serious and wilful misconduct

To make a determination that the worker is not entitled to compensation for serious and wilful misconduct, the Agent must be able to show that each of the following three factors apply:

• the injury was attributable to the serious and wilful misconduct of the worker
• the misconduct of the worker was serious
• the misconduct of the worker was wilful.

Attributing the injury to misconduct

For the injury to be due to misconduct, it is not necessary to show that the misconduct was the only cause of injury.

The Agent must at least show that the injury would not have occurred if there had not been any misconduct of the worker.

Serious misconduct

The word 'serious' relates to the misconduct itself and not to the extent of injury actually suffered. The Agent must consider the risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk. of danger or injury and the extent of injury that could be anticipated as a result of that risk.

If it is unreasonable to anticipate the injury or the extent of it as a result of the risk, it would be difficult to prove that the worker’s misconduct was serious.

Wilful misconduct

The Agent must show that the misconduct was carried out deliberately by the worker or without regard to its consequences.

Misconduct due to simple carelessness or inattentiveness will rarely be wilful.

Disregarding safety rules

If the worker seriously and wilfully disregards safety rules even if the worker's action or omission is deemed work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment., the worker may not be entitled to compensation.

See: Injuries deemed to arise out of or in the course of employment

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2.1.3.3 Driving offences

Depending on the type of driving offence the worker may only be entitled to reduced compensation or for certain serious road traffic offences, have no entitlement to compensation at all.

Injury caused by a transport accident involving a motor vehicle

If the worker’s injury was caused by a transport accident Transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986 involving a motor vehicle of which the worker was the driver at the time of the accident and the worker is convicted or found guilty of a drink driving offence, the worker’s weekly payments may either be reduced by one-third or two-thirds, depending on a worker’s blood or breath alcohol content (BAC Blood Alcohol Concentration) level.

Exceptions

A reduction of weekly payments may not apply if the worker can prove that the alcohol or drug concentration did not contribute to the injury.

See: Penalty exclusion

Road safety act 1986

Under the Road safety Act 1986 (RSA), it is illegal for a person to drive with a BAC level of 0.05 or more. However, s52 of the RSA requires that the certain types of drivers (listed below) to drive with a BAC of zero:

• drivers without a full licence (learner and probationary drivers)
• drivers of a ‘large vehicle’ (eg trucks) as defined by the RSA
• drivers who have a conditional licence where they are required to drive a vehicle with an alcohol interlock device. This is a device that will test the person’s breath and automatically stop him or her starting the vehicle if it detects alcohol in the sample
• taxi drivers
• commercially-operating driving instructors, while in charge of a vehicle and teaching a learner driver to drive
• motorcycle drivers within the first year of holding the licence or shorter period as determined by VicRoads.

Injury caused by a transport accident involving a motor vehicle

If a worker’s injury was caused by a transport accident involving a motor vehicle in which the worker was the driver and the worker is convicted or found guilty of driving with a prescribed illicit drug in his/her blood or oral fluid, the worker’s weekly payments will be reduced by one-third. A ‘prescribed illicit drug’ is defined in s3(1) of the Road Safety Act as:

• Methylamphetamine (ie speed, base, meth, ice, crystal) or
• 3, 4-Methylenedioxy-N-Methylamphetamine (MDMA) (ie ecstasy) and
• delta-9-tetrahydrocannabinol (ie cannabis).

See: Drink/drug driving penalty provisions

If the worker’s weekly payments are reduced, the reduction applies for an aggregate period of 130 weeks (whether consecutive or not). The reductions to weekly payments and the 130 week count will commence from the date a reduction notice is issued to the worker.

 

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Serious road traffic offences

From 5 April 2010 (except if a worker dies or suffers a severe injury), a worker who suffers a work-related injury caused by a transport accident involving a motor vehicle (not a train or a tram) in which the worker was the driver at the time of the accident, will not be entitled to compensation if convicted or found guilty of one or more of the following offences in connection with the claimed injury.

Drink/drug driving penalty provisions

This section provides a summary of the drink/drug driving penalty provisions and its impact on weekly payments.

Exceptions

A reduction of weekly payments may not apply if the worker can prove that the alcohol or drug concentration did not contribute to the injury.

See: Penalty exclusion

Impact for a driver required to have a BAC of zero

BAC level	Effect on entitlements
More than 0.00 and less than 0.12	One-third reduction to weekly payments
Between 0.12 and less than 0.24	Two-thirds reduction to weekly payments
0.24 or more	The worker is not entitled to compensation

Impact for a driver required to have a BAC below 0.05

BAC level	Effect on entitlements
0.05 or more and less than 0.12	One-third reduction to weekly payments
Between 0.12 or more and less than 0.24	Two-thirds reduction to weekly payments
0.24 or more	The worker is not entitled to compensation

Drug driving

Concentration of prescribed illicit drug in body fluid or blood	Effect on entitlements
Any concentration	Reduction to weekly payments payable by one-third

Serious road traffic offences

Offence	Effect on entitlements
As defined in s44 of WIRC Act or s82C of the AC Act	The worker is not entitled to compensation

 

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Proof of guilt or a conviction

For an Agent to determine that the worker is not entitled to compensation, the worker must be convicted or found guilty of the relevant serious road traffic offence.

The legislation states that the worker must be ‘convicted or found guilty’ of one (or more) of the road traffic offences specified in those sections for the reduction/disentitlement to apply (see also the ‘Legislative Changes’ part of this policy for the sections of the RSA and CA that contain the relevant offences).

The requirement of ‘conviction’ or ‘finding of guilt’ relates to the criminal process around road traffic offences.

For more serious road traffic offence (such as driving with a BAC level of more than 0.15), the police will usually charge the person. A charge must be heard by a court. On determining the matter, the court may make a finding of guilt, or convict the person of the offence, or dismiss the charge.

For less serious road traffic offences (such as driving with a BAC of 0.15 or less and driving with any concentration of a prescribed illicit drug in blood/oral fluid), Vic Police or VicRoads may issue the person with a traffic infringement notice. If the person does not object to the traffic infringement notice within 28 days from the date the notice is issued, the notice will automatically take effect as a conviction at the expiry of the 28 days. This applies whether or not the person has paid a fine in respect of the notice. If there is such an objection, the infringement is cancelled and the police will charge the person. The matter then proceeds to Court.

Agents are not to reduce weekly payments, reject a claim or terminate a worker’s entitlements to compensation until a conviction or guilty finding is made and notice is given.

Recovery is not to be sought from the worker for compensation paid during the period before the conviction or finding of guilt was made.

If Agents do not have proof of guilt or a conviction at the time a liability assessment is to be made, Agents should accept liability if appropriate. Agents subsequently cease and determine the worker’s entitlement to compensation and in the case of a claim for compensation in the form of weekly payments, by giving notice in accordance with the legislation.

See: Altering, reducing or terminating weekly payments

 

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Penalty exclusion

Drink/drug driving penalties do not apply if the worker can prove that the alcohol or drug concentration did not contribute to the injury.

Onus of proof

The worker bears the onus of proof.

The Agent is not required to assess whether the worker’s BAC or drug level contributed to the work-related transport accident in all circumstances. An example of where the presence of alcohol or drugs in a worker’s blood would not have contributed to an injury is where the injury occurred while the worker (a bus driver) was parked legally in a parking bay at the bus depot and an accident occurred when another driver ran into the bus.

Higher penalty

If a worker has been convicted of more than one offence, the higher penalty will apply.

For example If a worker has been convicted of drink driving with a BAC of 0.13 (reduction of two-thirds) and drug driving with any concentration of a prescribed illicit drug (reduction of one-third), the worker’s weekly payments will be reduced by two-thirds.

Privacy

Agents are not to inform employers that a worker has been or might be convicted or found guilty of a driving offence to maintain the worker’s privacy.

 

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Conviction or finding of guilt

If a claim involves the worker being injured in a transport accident whilst driving and the injury does not result in death or severe injury, WorkSafe must write to the worker and ask whether they have received or believe that in future they will receive, a traffic infringement notice, charge, conviction or a finding of guilt by a court in relation drink or drug driving or any of the offences referred to in the legislation.

If the worker advises that drink/drug driving or a serious road traffic offence was not involved, no further enquiries need to be made and the claim is processed normally. If WorkSafe later finds out that the worker has made a false or misleading claim or false or misleading statement in support of their claim, they may be prosecuted. If an Agent does not have any information about a conviction or finding of guilt in the 28 day liability determination timeframe, the claim cannot be rejected if the worker is otherwise entitled to compensation.

If the worker has indicated that they have been convicted and/or found guilty of drink/drug driving or a serious road traffic offence, Agents request written confirmation of the finding from the worker. If:

• the worker indicates that a conviction/guilty finding may occur in the future or is issued with an infringement notice
• the Agent is unable to contact the worker within a reasonable period (28 days) to obtain the relevant information
• the worker refuses to provide the relevant information or
• a report (eg circumstance investigation report, information from the employer, medical report, report from other government agencies such as the Transport Accident Commission) reveals that drugs or alcohol may have contributed to the injury or that the worker has committed a serious road traffic offence in respect of the claimed injury.

The Agent is required to request WorkSafe to obtain further relevant information. WorkSafe can request the following information from VicRoads, Victoria Police and/or the courts:

• details of any offence or alleged offence
• details of any traffic infringement notice
• details of any charges laid
• details of any court proceeding involving the offence
• details of any conviction or finding of guilt
• the BAC level or the details about the prescribed illicit drug in the worker’s oral fluid or blood.

Such information is confidential and subject to privacy legislation as well as the secrecy and privacy provisions of the legislation. It may only be requested and used for the purpose of the assessment of a worker’s entitlement to compensation.

The request for information must be made to the Claims Division at WorkSafe.

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2.1.3.4 Failure to disclose pre-existing injuries and diseases

A worker is not entitled to compensation if it is proved that before starting the job:

• the worker had a pre-existing injury or disease that they were aware of
• the employer advised the worker in writing:
• the nature of the proposed employment
• to disclose all pre-existing injuries and diseases that they know of and that may be affected by the proposed employment
• that any recurrence, aggravation, acceleration, exacerbation and deterioration of the pre-existing injury or disease resulting from the employment does not entitle the worker to compensation if they failed to disclose or made a false or misleading disclosure
• the worker failed to disclose or made a false and misleading statement.

See: Pre-existing injuries & diseases

2.1.3.5 Worker ceases to be employed

A claim for compensation for an injury arising out of or in the course of employment made by a worker no longer working for the employer is deemed not to have been made unless the worker satisfies the Agent that they could not reasonably have made the claim while employed by that employer.

Agent must ask for reasons in writing

The Agent must request the worker to provide a written explanation of why the claim could not reasonably have been made while employed by the employer.

Reasons accepted

If the Agent is satisfied with the reasons, the claim is deemed to be made on the date the reasons are received.

An example of acceptable circumstances could include when a worker reports a seemingly minor injury and does not make a claim but later requires surgery or time off work for treatment.

For example A minor laceration later becomes infected and requires time off work for treatment.

Reasons not accepted

If the Agent rejects the reasons and considers the claim as deemed not made, the worker may refer any dispute about this decision to conciliation.

See: Dispute resolution

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