Author Archive kauthenlegal

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Spent 14 months on remand due to police misconduct then acquitted of murder.

Kauthen Legal is assisting a client who spent 14 months on remand for murder, only to be acquitted. He is suing Victoria Police and the State of Victoria for:

  • Malicious prosecution; and
  • Misfeasance in public office.

While on remand he experienced horrific violence, was denied access to his dying father, was taken in handcuffs to his father's funeral, then prohibited from attending the burial.

He developed a significant psychological injury and now has continual fears that police will arrest him for no reason and throw him back in prison.

The police investigation failed on a number of fronts and lacked impartiality - the police in essence thought they had their man and sought to find and massage facts that fit their case, rather than doing what was fair to our client who made full disclosures during his police interview.

Most disturbingly, the court was mislead at both our client's bail application and at his trial - with no consequences levelled on the police and prosecutor involved. Our client is seeking justice against those state agencies who failed him and did not care what happened to him.

Our client is seeking damages and disciplinary action against the police and prosecutor involved.

ABC journalist Danny Tran has written about our client's story: https://www.abc.net.au/news/2021-04-01/victorian-man-acquitted-of-murder-sues-police/100037592

 

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Supreme Court sets aside Interim Accommodation Order, returns child.

Kauthen Legal assisted a client who lodged an appeal to the Supreme Court from a decision by the Children's Court to grant an Interim Accommodation Order (IAO) on the application of the Department of Health and Human Services (DHHS).

The child was in the care of the Grandparents who had looked after the child for over 9 years. DHHS contended that our client's son (who is the child's father) posed a risk to the child following him being released on bail and who was bailed to our client's house.

Our client's child was removed from their home by DHHS Child Protection and placed in the care of the biological mother.

Application of the Children, Youth and Families Act 2005 (Vic) (CYF Act)

The IAO provides for a child viewed by DHHS as at risk to be placed into alternative accommodation.

Section 162 of the CYF Act says that a child is in need of protection where:

  • the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; 
  • the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;

Section 10 says that in granting an IAO, the Court considers the best interests of the child as paramount by considering:

  • the need to protect the child from harm;
  • to protect their rights; and
  • to promote their development must always be considered;
  • that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child. 

Allegations by DHHS

In seeking an IAO, DHHS assessed that there was an unacceptable risk of physical and emotional harm to the child and that our client was unlikely to protect the child from this harm.

DHHS made their decision on the following basis:

  • that our client did not demonstrate insight into the protective concerns of Child Protection;
  • that our client could not provide safe unbiased supervision of the child;
  • that Victoria Police shared these concerns.

The decision by the Supreme Court

The Court cited authorities including Secretary to the Department of Health & Human Services v Children’s Court of Victoria that said:

  • the likelihood of risk has to be a 'real likelihood'; and
  • what will the severity of the consequences be should the risk come to pass.

Furthermore the Court has the power to affirm the the IAO or set it aside and impose a new IAO on alternative conditions in accordance with the best interests of the child.

The Court found for our client and set aside the IAO for the following reasons:

  • DHHS had provided information to the Magistrate that imposed the IAO that gave a strong impression for our client's son's guilt - a matter for which he was on bail for;
  • Erroneous and scandalous information provided by Victoria Police lacking in any substantiated factual basis;
  • Both biological parents have historical convictions that posed a risk of harm to the child;
  • There was no real likelihood of exposing the child to physical harm;
  • There was no previous record of concern by DHHS with our client in the 9 years she has looked after the child;
  • The past intervention demonstrated by our client to minimise the exposure to harm by the child, and has been a moderating influence;
  • DHHS failed to serve our client with notice as a party leading to the IAO being heard and determined by the Children's Court in her absence;
  • Our client's home was the single stable home of the child since birth.

The conduct of the police is questionable in this case, as was the eagerness of DHHS to accept their information and incorporate it in their reports without any substantiated facts underpinning the information.

The case demonstrates the need for DHHS to be acting on solid facts and not speculation so as to not be viewed as biased toward one party.

To read the case in full: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2020/740.html

 

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Summary of benefits under WorkCover.

Once your WorkCover claim has been accepted, you will be entitled to the following:

  1. Weekly payments of compensation:

For the first 13 weeks that you can’t work as a result of your injuries, you are entitled to 95% of your pre-injury average weekly earnings.

The calculation of pre-injury average weekly earnings ( PIAWE ) is based on your average weekly earnings for the 52 weeks preceding your injury, or if you have been employed for less than 52 weeks, on the average weekly earnings for the period of your employment. PIAWE are based on ordinary earnings for the normal number of hours worked per week and can include overtime and/or shift allowances for the first 52 weeks of weekly payments.

After 13 weeks, payments will continue at 80% of your pre-injury average weekly earnings if you have no capacity for work.

If you have a capacity to undertake some work, you are entitled to 80% of the difference between what you are earning and your pre-injury average weekly earnings.

Payments usually stop after 130 weeks of compensation, unless you can show that you have no current capacity for work and that situation is likely to continue indefinitely.

If you are working at least 15 hours per week and are likely to continue indefinitely to be incapable of undertaking further work, you may be entitled to compensation beyond 130 weeks.

  1. Medical and like expenses:  

You are entitled to payment or reimbursement of your reasonable medical and like expenses which include medical treatment, medication, household aids and home help, physiotherapy and similar services, as well as reimbursement of travel expenses to and from medical treatment. They also include the cost of rehabilitation services designed to assist you to return to work or assist you to seek other suitable employment. The reasonable cost of retraining also forms part of these expenses.

 

In the event that you have suffered a permament impairment as a result of your injuries, you may also be entitled to make a claim for the following:

  1. Lump Sum Claim for Impairment Benefits

This benefit is calculated in accordance with a formula depending on the level of your permanent impairment as assessed under the 4th Edition of the American Medical Association Guidelines to the Evaluation of Permanent Impairment.

There are thresholds in place as to the minimum level of impairment you must be suffering from to be entitled to compensation. You will also be compensated if you have suffered a total loss of a body function as a result of your injuries.

This benefit is separate from any entitlement you have to weekly payments of compensation and medical and like services.

4.Common Law Claim for negligence

In order to be successful with a common law claim you must prove that you suffer from a ‘serious injury’ as this term is defined under the WorkCover legislation and that your injuries arose out of your employer’s or a third party’s negligence.

If you can establish both these elements you will be able to recover damages for pain and suffering and, if you satisfy the relevant threshold, damages for loss of earnings both past and future. You have six years from the date of your injury to pursue this type of claim.

 

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PVYW v Comcare – the final word.

I have previously written about this unusual case, which was decided by the High Court Of Australia yesterday. The High Court decided that the plaintiff was not entitled to compensation as her injuries were unrelated to her employment.

This is an amazing decision – everybody I discussed this case with ( both from plaintiff and defendant sides ) thought this was a no-brainer and the plaintiff should succeed as she was on a work -related trip, staying at a motel paid for by her employer and engaging in a perfectly lawful activity.

The High Court obviously saw things differently and this case will have significant ramifications in relation to workers’ entitlement to compensation.

Here’s the transcript of an article published on 30 October 2013 in the Canberra Times discussing the decision:

Public servant loses sex injury compo claim

A Canberra public servant injured in a “vigorous” sex session in a country motel six years ago has lost her claim against the federal government for workers’ compensation.

The High Court has ruled in Canberra on Wednesday morning that the woman was not entitled to compensation from the federal workplace insurer Comcare because the circumstances of her injury were not related to her employment.

But after four years before the courts the case still divides legal opinion with two High Court judges disagreeing with the majority of their colleagues and arguing the woman should have been paid out.

The case sent shockwaves through the public sector and has big implications for bosses around Australia who send employees on work trips and for workers who travel as part of their jobs.

Lawyers for Comcare argued throughout the four-year legal saga that thepublic servant should not get taxpayer-funded compensation as result of a “personal choice” to have sex while on the work trip.

But the woman’s barrister argued the public service, having sent the woman to the NSW country town, was liable for her welfare, even if she was injured while having sex.

The woman’ name has been suppressed by the courts.

The bureaucrat suffered lacerations to her nose and mouth as well as “psychological injuries” when a glass light fitting was pulled from the wall of the motel room as she had sex with a local man in Nowra in November 2007.

The legal saga has rumbled on since 2009, through the Administrative Appeals Tribunal, the Federal Court and now the High Court.

The case has been dubbed “scheme significant” by Comcare bosses who are trying to stem a rising tide of compensation claims by public sector workers.

Appearing for the federal government at the High Court hearing in August, Commonwealth Solicitor-General Justin Gleeson, SC, told six judges that the sex activity was “in every sense a personal choice”.

The public servant’s previous appeal to the Federal Court was successfulwhen the lower court decided the Commonwealth Government, having sent the woman on the trip, was liable for everything that happened to her there, provided she was not engaging in misconduct.

But Comcare’s appeal to Australia’s highest court argued that the injury was sustained during an interval or interlude to the woman’s official duties and was not “compensable”.

In a judgment handed down in Canberra on Wednesday morning, the High Court upheld Comcare’s appeal in a 4-2 majority decision.

Here’s the link to the article:

http://www.canberratimes.com.au/act-news/public-servant-loses-sex-injury-compo-claim-20131030-2wf3n.html#ixzz2jA2fRdW7

Here’s the link to the High Court decision:

http://www.austlii.edu.au/au/cases/cth/HCA/2013/41.html

 

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WorkSafe system failing ‘particularly vulnerable people’: Ombudsman.

Here is an article by Benjamin Preiss from The Age of 11 September 2016. The Ombudsman has investigated the WorkCover Insurers’ practices and she was less than impressed.

WorkSafe system failing ‘particularly vulnerable people’: Ombudsman

Insurance agents working for WorkSafe have reaped rewards for unfairly denying payments to injured workers, Victoria’s chief complaints investigator has found.
Ombudsman Deborah Glass has released a report revealing the workers’ compensation system has failed some “particularly vulnerable people”.
Ms Glass found that the overall system was not broken but identified problems in complex claims, which made up 20 per cent of claims.
“They cannot simply be explained away as a few bad apples spoiling the barrel,” she said.

The report’s release comes one day after Fairfax Media revealed insurance companies were using dirty tricks to avoid paying out entitlements.
The Ombudsman’s investigation found agents had “unreasonably denied liability or terminated entitlements” for compensation claims.
Ms Glass conducted a detailed review of 65 cases, in addition to a random sample of email records and interviews with injured workers and executives from the five agents.
In one case a mother took her life after losing her medical entitlements for a stress disorder that originated from workplace sexual assault and harassment.
The Ombudsman made recommendations including improving workplace injury and compensation laws and preventing agents from using “preferred independent medical examiners”.

One component of the remuneration deal included financial rewards and penalties for agent performance, including the termination of claims before they reached milestones of 13, 52 and 134 weeks.
The investigation examined five WorkSafe agents that covered public and private sector workers, from police to farmers.
Ms Glass said the great majority of claims were not complex and did not attract complaints. But complex claims had failed some vulnerable people.
“We found agents cherry-picking evidence to support a decision to reject or terminate a claim,” she wrote.

Complex claims accounted for 20 per cent of those received each year but made up 90 per cent of the scheme’s liabilities.
Ms Glass found that WorkSafe needed to examine its use of incentives and independent medical examiners.
The investigation uncovered a range of “unreasonable decision making” across the five agents.
In some cases agents allowed employers to “improperly” influence their decisions, provided inadequate review processes, unreasonably used evidence and made decisions that contradicted medical panel opinions.
“My investigation found numerous examples of agents selectively using evidence to reject or terminate a claim, while disregarding other available evidence,” she wrote.
There were also cases where examiners engaged in “doctor shopping” to support a rejection or termination of entitlements.
In some instances agents persisted with their decisions to reject or terminate claims despite knowing their decision would be overturned by a court.

The government has accepted all of the Ombudsman’s recommendations, Finance Minister Robin Scott said.
“It’s unacceptable that injured workers did not get the support or respect they deserved,” he said.

The Police Association secretary Ron Iddles said the report vindicated its push for government to introduce legislation that creates a presumption that post-traumatic stress disorder diagnosed in frontline workers was caused by their jobs.
“This is now evidence of what we have been saying,” Mr Iddles said.
“And the report highlights the process is more brutal than the psychological injury at times.”

In a statement, WorkSafe chief executive Clare Amies said the Ombudsman’s recommendations were being implemented.
She said WorkSafe and its insurance agents managed more than 90,000 injured worker claims a year and made more than 2 million decisions annually about compensation and treatment.
The insurance agents in the Ombudsman’s investigation were Allianz, CGU, Gallagher Basset, QBE and Xchanging.
Fairfax Media has contacted all the insurance agents for comment.
Xchanging said it co-operated with the Ombudsman’s investigation and was reviewing the final report. Gallagher Basset referred to WorkSafe for its response.
IAG, whose brands include CGU, said it would work closely with WorkSafe to implement the report’s recommendations.
An Allianz statement said the company had reviewed its seven cases involved in the report and it was confident its decisions to continue or cease benefits were made in accordance with the law.

Here is the link to the original article in The Age:

http://www.theage.com.au/victoria/worksafe-system-failing-particularly-vulnerable-people-ombudsman-20160912-gre7li.html

Do not accept at face value whatever your WorkCover Insurer tells you about your claim. It might not be in your best interests. Always seek advice from an accredited specialist in personal injury law.

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WorkSafe: complex claims process needs fixing.

The Victorian Ombudsman has finalised its follow-up review from the 2016 investigation into the WorkCover scheme. Unfortunately, and perhaps unsurprisingly, nothing much has changed from the 2016 findings. Workers are still being taken advantage of by greedy Insurance companies.

Here’s the transcript of an article from The Age from 3 December 2019 by Sumeyya Ilanbey and Benjamin Preiss:

WorkSafe insurance agents are continuing to deny legitimate claims for worker’s compensation, in decisions the state’s ombudsman has slammed as “immoral and unethical”.

Victorian Ombudsman Deborah Glass released her follow-up report into her 2016 investigation, which found insurance agents were unfairly denying WorkCover claims for financial incentives.

In a scathing statement on Tuesday morning, Ms Glass said her 2016 investigation had “only scratched the surface”.

“I said in 2016 these cases involve people’s lives, and the human cost should never be forgotten; that human cost continues to this day,” Ms Glass said.

“Many of the decisions and actions we saw were not only unjust and wrong. Some were downright immoral and unethical.”

Ms Glass was also critical of the regulator WorkSafe, which she said even when unethical decisions made by agents were brought to its attention, WorkSafe did not intervene or require the agents to overturn their decisions.

She said the regulator “appeared reluctant” to deal with agents making unreasonable decisions, which raised “the troubling prospect that WorkSafe feels beholden to the agents and dependent on their participation to deliver a financially viable scheme”.

In one case that has been slammed by Ms Glass, an aged care worker was unfairly surveilled without adequate justification.

The investigation also uncovered that a factory’s workers payments were terminated when he failed to take part in occupational rehabilitation, despite experiencing psychotic hallucinations.

In relation to a police officer who developed post-traumatic stress disorder after attending traumatic events, an independent medical examiner (IME) concluded in 2017 the man was indefinitely incapacitated for all work, Ms Glass’ report states.

“However, the agent tried to change the IME’s opinion by highlighting that the man played golf, asking ‘Would this not translate to a partial capacity for suitable alternative employment or capacity to participate in occupational services?’

“The IME then said it was ‘possible’ the man had improved since he saw him and that he could now participate in occupational rehabilitation, to which he was then referred. The man complained to WorkSafe, saying the IME’s claims were ‘baseless’ and a ‘guess’, not an opinion.”

WorkSafe chief executive Colin Radford said improvements introduced after the Ombudsman’s 2016 investigation had “unfortunately not been enough”.

“No one chooses to be injured at work. When injuries or illness do occur, workers deserve to be treated with empathy and respect and to receive the right support and the right entitlements in a timely manner,” he said. “To those injured workers for whom this has regrettably not been the case, I apologise.”

In a statement, Attorney-General Jill Hennessy said the report revealed disturbing examples of workers being unfairly treated and unjustly denied their legal entitlements.

“I have written to the board of WorkSafe detailing my expectation that the recommendations are actioned quickly, in particular to ensure injured workers have access to a timely independent review of their case,” she said.

Two recommendations made to the government have been accepted. It has agreed to commission a review into the current models of claims management to ensure that appropriate compensation is paid to injured workers who have complex claims. It will also introduce a new dispute resolution process.

Ms Hennessy said 13 recommendations made to WorkSafe had also been accepted.

 

Here is the link to the original article:

https://www.theage.com.au/politics/victoria/immoral-and-unethical-ombudsman-slams-workcover-scheme-and-worksafe-20191203-p53gc2.html

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‘Immoral and unethical’: Ombudsman slams WorkCover scheme and WorkSafe.

The Victorian Ombudsman has finalised its follow-up review from the 2016 investigation into the WorkCover scheme. Unfortunately, and perhaps unsurprisingly, nothing much has changed from the 2016 findings. Workers are still being taken advantage of by greedy Insurance companies.

Here’s the transcript of an article from The Age from 3 December 2019 by Sumeyya Ilanbey and Benjamin Preiss:

WorkSafe insurance agents are continuing to deny legitimate claims for worker’s compensation, in decisions the state’s ombudsman has slammed as “immoral and unethical”.

Victorian Ombudsman Deborah Glass released her follow-up report into her 2016 investigation, which found insurance agents were unfairly denying WorkCover claims for financial incentives.

In a scathing statement on Tuesday morning, Ms Glass said her 2016 investigation had “only scratched the surface”.

“I said in 2016 these cases involve people’s lives, and the human cost should never be forgotten; that human cost continues to this day,” Ms Glass said.

“Many of the decisions and actions we saw were not only unjust and wrong. Some were downright immoral and unethical.”

Ms Glass was also critical of the regulator WorkSafe, which she said even when unethical decisions made by agents were brought to its attention, WorkSafe did not intervene or require the agents to overturn their decisions.

She said the regulator “appeared reluctant” to deal with agents making unreasonable decisions, which raised “the troubling prospect that WorkSafe feels beholden to the agents and dependent on their participation to deliver a financially viable scheme”.

In one case that has been slammed by Ms Glass, an aged care worker was unfairly surveilled without adequate justification.

The investigation also uncovered that a factory’s workers payments were terminated when he failed to take part in occupational rehabilitation, despite experiencing psychotic hallucinations.

In relation to a police officer who developed post-traumatic stress disorder after attending traumatic events, an independent medical examiner (IME) concluded in 2017 the man was indefinitely incapacitated for all work, Ms Glass’ report states.

“However, the agent tried to change the IME’s opinion by highlighting that the man played golf, asking ‘Would this not translate to a partial capacity for suitable alternative employment or capacity to participate in occupational services?’

“The IME then said it was ‘possible’ the man had improved since he saw him and that he could now participate in occupational rehabilitation, to which he was then referred. The man complained to WorkSafe, saying the IME’s claims were ‘baseless’ and a ‘guess’, not an opinion.”

WorkSafe chief executive Colin Radford said improvements introduced after the Ombudsman’s 2016 investigation had “unfortunately not been enough”.

“No one chooses to be injured at work. When injuries or illness do occur, workers deserve to be treated with empathy and respect and to receive the right support and the right entitlements in a timely manner,” he said. “To those injured workers for whom this has regrettably not been the case, I apologise.”

In a statement, Attorney-General Jill Hennessy said the report revealed disturbing examples of workers being unfairly treated and unjustly denied their legal entitlements.

“I have written to the board of WorkSafe detailing my expectation that the recommendations are actioned quickly, in particular to ensure injured workers have access to a timely independent review of their case,” she said.

Two recommendations made to the government have been accepted. It has agreed to commission a review into the current models of claims management to ensure that appropriate compensation is paid to injured workers who have complex claims. It will also introduce a new dispute resolution process.

Ms Hennessy said 13 recommendations made to WorkSafe had also been accepted.

 

Here is the link to the original article:

https://www.theage.com.au/politics/victoria/immoral-and-unethical-ombudsman-slams-workcover-scheme-and-worksafe-20191203-p53gc2.html

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PVYW v Comcare continued.

I had previously written about this unusual case.

The High Court of Australia today gave leave to Comcare to appeal this matter.

Here’s the transcript of today’s article in The Age regarding this new development :

Sex injury compo case goes to the High Court

It started with a dinner date and a tryst in a motel room in the country, made its way to the Federal Court and now a notorious compensation case about a woman injured while having sex on a work trip will play out in the High Court.

The federal government’s workplace safety body, Comcare, was granted leave on Friday to appeal, to seek a High Court ruling on the distinction between private and business activities when employees are travelling for work.

The appeal will examine a long-standing legal test used in compensation matters, which sets out how breaks between periods of actual work are considered when an employee is required to be away from home.

The female Commonwealth public servant at the centre of the case, whose name has been suppressed, was required to travel to regional NSW in 2007 and stayed at a motel booked by her employer.

She arranged to meet a male friend and, after going out for dinner, the pair went to her motel room and had sex.

In a statement in previous court hearings, the woman’s sexual partner said they were “going hard” when a light fitting was pulled from the wall and fell on her. She suffered wounds to her nose and mouth, as well as psychological injuries, and has faced a lengthy legal battle to receive a payout.

Her claim was initially accepted by Comcare, but was revoked in 2010 and reviewed by the Administrative Appeals Tribunal, which found sexual activity was “not an ordinary incident of an overnight stay like showering, sleeping, eating”.

The woman appealed against that decision in the Federal Court and won in April last year, a judge finding the injuries were suffered in the course of her employment.

Comcare appealed unsuccessfully in December and announced it would take the matter to the High Court.

Solicitor-General Justin Gleeson, SC, representing Comcare, said: “The case is not simply about a particular form of sexual activity in the hotel room. If you think more broadly what is at the heart of it is an exercise of autonomy by an individual.”

The woman’s barrister, Leo Grey, said the legal test did not need to be revisited.

“In our submission, the test has stood the test of time for 20 years,” he said. “The fact that this case has raised some unusual facts has not resulted in an amendment.”

Mr Grey said there should not be any moral judgment about the woman’s activities.

Justices Kenneth Hayne and Stephen Gageler granted leave to appeal, on the basis that any previous payment to the woman be allowed to stand. The appeal may be heard in August.

http://www.theage.com.au/national/sex-injury-compo-case-goes-to-the-high-court-20130510-2jdcc.html

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WorkSafe Victoria a habitual litigant, says chief judge.

Here’s an article from today’s Age regarding Worksafe’s tactics of playing hard ball with workers’ entitlements. Apart from the fact that these proceedings delay payment of benefits to injured workers by months if not years, they also cost taxpayers a fortune.

Here’s the transcript :

“ The County Court’s chief judge has warned WorkSafe Victoria to be more realistic about its legal battles against workers applying for compensation, which he says are putting pressure on the court.

Workers claiming compensation from their employers for an injury sustained in the workplace must first apply to WorkSafe to determine that it is serious.

Chief judge Michael Rozenes lashed out at WorkSafe in the court’s annual report on Tuesday, criticising the number of challenges it mounts. He said WorkSafe had challenged 228 of the 302 serious injury applications concluded in the court in 2012-13. Claimants won most of these contests.

’‘The VWA is a litigant which consistently loses at least 80 per cent of the applications it contests,” he said. “I continue to hope that in the future greater consideration is given, and a more realistic assessment of the prospects of success conducted, before litigation that is both costly and time consuming is proceeded with.”

A WorkCover spokesman said more than 90 per cent of more than 2500 serious injury applications in 2012-13 were resolved without the need for the court to consider the applications.“

The article can be found here:

http://www.theage.com.au/victoria/worksafe-victoria-a-habitual-litigant-says-chief-judge-20131126-2y83l.html#ixzz2lob5qWrX

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WorkCover system failing long-term injured workers, Victorian Ombudsman finds in WorkSafe report.

Following from the previous post, here is an article from the ABC website with more details highlighting the behaviour some of the Insurers engage in when  dealing with Workers’ entitlements. If you have been injured at work, do get legal advice as to your entitlements to prevent being exposed to this sort of treatment.

Here is the article:

WorkCover system failing long-term injured workers, Victorian Ombudsman finds in WorkSafe report

Victoria’s workers compensation scheme has been failing long-term injured workers in “downright immoral and unethical” circumstances, the state’s ombudsman has found.

Key points:

  • An investigation found instances of claims agents “cherry picking” medical advice to have compensation rejected
  • The ombudsman said claims were being terminated in “wholly unreasonable circumstances”
  • The Government and WorkSafe Victoria accepted her 15 recommendations

In a scathing report following an 18-month investigation, Victorian Ombudsman Deborah Glass found WorkSafe agents were continuing to make unreasonable decisions, in some cases for financial incentives, leaving injured workers without compensation.

The management of WorkCover compensation claims is outsourced by WorkSafe Victoria to five claims agents: Allianz, CGU, EML, Gallagher Bassett and Xchanging.

“They’re terminating claims in wholly unreasonable circumstances,” Ms Glass told ABC Radio Melbourne.

“Agents are making decisions to terminate claims, for example, or require unfair return to work practices that are not only unreasonable and unjust, some of these cases are downright immoral and unethical.”

The investigation focused on complex claims, which mainly involve injured workers who have been off work and receiving compensation for more than 130 weeks. They make up about a quarter of all claims.

The ombudsman found evidence of all five agents ignoring medical advice, “doctor shopping” and “cherry picking” evidence to terminate or reject complex claims.

She found WorkSafe had insufficient oversight of medical advisers hired by agents and referred workers to conciliation or court “despite clearly inadequate or unreasonable agent decision making”.

The agency was “too often unwilling or unable” to deal with the disputes process, she found.

Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume.

But Ms Glass said the 2016 report “only scratched the surface” and, in some instances, “drove some bad practices underground”.

‘Please don’t put me in the 2022 ombudsman report’

Ms Glass said the system had a “complicated set of financial rewards and penalties” that encouraged the agents to get people off WorkCover.

Agents were congratulated for terminating claims and often referred to outcomes as “wins” and “losses”.

In one email, an EML case manager told a return to work specialist that a case outcome was “another win”.

The specialist replied: “handy 75K made today, no biggie :D”.

In a further email exchange, the specialist joked about depositing a portion of the money into an “offshore Cayman Island account”.

“Worksafe, just joking if you are auditing emails, please don’t put me in the 2022 ombudsman report,” the email continued.

The investigation found injured workers were often required to attend occupational rehabilitation in “wholly unsuitable circumstances”, including a man who was experiencing severe psychotic hallucinations.

Another man, who was homeless at the time, was in hospital after a self-harm attempt but had a non-compliance notice sent to his old home, despite the agent knowing he was homeless.

Agent lied to injured woman about surveillance

In another case, an aged care worker with a severe work-related back injury was put under surveillance by her agent, even though there was no evidence she was misrepresenting her injury.

Although the surveillance footage showed she walked with a limp related to the back injury, the surveillance continued, prompting the woman to ask whether she was being followed.

“The agent denied it and told her that if she was concerned about being followed she ought to go to police,” Ms Glass said.

“This is a woman who not only has an injury but she’s developing a complex mental health condition as a result of that injury. You’d think you were paranoid if that was happening to you.

“We found too many examples of this happening.”

The State Government confirmed it would implement the watchdog’s two recommendations to the Government to commission an independent review of the claims management model and bring in a new dispute resolution process.

WorkSafe accepted a further 13 recommendations, including establishing a dedicated business unit to review disputes.

“The report reveals disturbing examples of injured workers who have been unfairly treated and unjustly denied their legal entitlements,” Jill Hennessy, the Attorney-General and Minister for Workplace Safety, said in a statement.

“It also demonstrates a systemic problem with the current model of claims management for complex claims, and insufficient oversight and review mechanisms.

 

The article can be found here:

https://www.abc.net.au/news/2019-12-03/victoria-workcover-system-failing-injured-workers-ombudsman-find/11759874

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