Author Archive kauthenlegal

Bykauthenlegal

Work-related injuries – Common law claims for negligence.

Separately from your statutory WorkCover entitlements, you may in some circumstances bring a claim against your employer and/or a third party in relation to your injuries. These claims depend on you being able to establish that your injuries were caused by your employer’s or a third party’s negligence. You have 6 years from the date of your injury to bring a common law claim but this can be extended in some circumstances. If you are successful with this claim you will recover compensation in the form of damages.

Damages are divided into the following:

1. Pain and and suffering damages

These are designed to compensate you for your pain and suffering arising out of your injuries, and your loss of enjoyment of life. They are also called general damages and are subjective to each claim. These damages focus on how you have been personally affected by your injuries in terms of your ability to pursue your activities of daily living, your hobbies, sporting endeavours etc.

2. Economic loss damages

These damages are also called special damages and are divided into past loss of earnings and future loss of earning capacity and are designed to compensate you for your loss of wages both past and into the future.

In order to be successful with a common law claim you will need to establish the following 2 elements :

1. Serious injury

This is a pre-requisite to being entitled to pursuing a common law claim. Only if you can show that your injuries satisfy the definition of serious injury will you be able to pursue a common law claim.

A serious injury is either a 30 % Whole Person Impairment pursuant to the 4th Edition of the American Medical Association Guide for the Evaluation of Permanent Impairment or one of the following:

a.  permament serious impairment or loss of a body function

b.  permanent serious disfigurement

c.  permanent severe mental or behavioural disturbance or disorder or

d.  loss of a foetus

When assessing whether you satisfy the definitions under a., b. and c. a Court will look at how you have been subjectively affected by your injuries. In other words a Court will look at the consequences the injuries have had on you personally.

If you satisfy the serious injury test, you may obtain a serious injury certificate for pain and suffering only or for pain and suffering and economic loss. In order to qualify for the latter, you must show that as a result of your injuries you have suffered a permanent loss of earning capacity of at least 40% compared to your pre-injury earnings or earning capacity. This is a very onerous test to satify.

If you satisfy Worksafe or a Court that you suffer fom a serious injury, you will be entitled to issue proceedings against your employer and/or a third party you hold responsible for your injuries.

2. Negligence

You must show that your employer or a third party negligently caused your injuries. Your employer has an obligation to provide you with a safe system of work. If your employer fails to do this and as a result you suffer injury, then arguably you will be able to establish negligence. If your injuries were caused by the act or omission of a third party, you must show that this third party breached a duty of care it owed you and that you have suffered your injuries as a result of this act or omission.

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

PVYW v Comcare.

For an injury to be compensable under WorkCover, you need to show that it arose out of or in the course of your employment. Usually, this requirement does not cause a lot of dispute. A recent case in the Federal Court of Australia however has caused quite a stir, mainly as a result of the unusual fact scenario.

The case of PVYW v Comcare is a matter arising under the federal workers’ compensation scheme, but the same broad principles regarding entitlement to compensation apply.

In this case, an employee had been sent to a regional NSW town for work and was required to stay at a motel overnight. The employer had booked and paid for her accomodation. That night she arranged to meet a male friend who lived in town and the pair had dinner together. They then proceeeded to the employee’s motel room where they had sex. Whilst enagaging in sexual intercourse, a glass fitting above the bed was pulled from its mount and fell on the employee, causing her injuries to her nose and mouth which required medical treatment.

The employee lodged a claim for compensation which was rejected. She applied to the Administrative Appeals tribunal which confirmed Comcare’s decision, having determined that the injury had not arisen in the course of the employee’s employment. In particular, the tribunal stated that “ the employer had not expressly or impiedly induced or encouraged the applicant’s sexual conduct that evening. Nor did the employer know or could reasonably know that such an activity was contemplated by her. The activity was not an ordinary incident of an overnight stay like showering, sleeping, eating, or returning to the place of residence from a social occasion elsewhere in the vicinity. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced. Accordingly, the applicant’s injuries were unrelated to her employment, took place during her leisure time, and were of a private nature”.

The employee appealed to the Federal Court which upheld the appeal and found that she was entitled to compensation. Justice John Nicholas considered that the Tribunal was wrong in requiring the employer to induce or encourage the activity in question, either expressly or impliedly. He stated that “ if the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity. In the absence of any misconduct, or and intentionally self-inflicted injury, the fact that the applicant was enagaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result ”.

The full text of the decision can be found here:http://www.austlii.edu.au/au/cases/cth/FCA/2012/395.html

Comcare then appealed to the full bench of the Federal Court which on 13 December 2012 found on that there was no error in Justice Nicholas’ decision and upheld his findings. In particular the Court said that “ it is quite clear from his Honour’s remarks (…) that the concept of a ‘frolic of his own’ is one which applies to wrongful acts. That was not the case here and the notion has no application to the present case. No approval, express or implied of the respondent’s conduct was required in the present case. The views of the employer were irrelevant.”

The full text of the decision can be found here :http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/181.html

On 14 January 2013 Comcare released the following media release :

“Comcare has lodged an application for special leave to appeal to the High Court of Australia in respect of the Full Court of the Federal Court’s decision in Comcare v PVYW handed down on 13 December 2012.

A Commonwealth employee is seeking workers’ compensation for injuries sustained after a light fitting was pulled from the wall of a motel during sex, on a business trip.

Comcare is taking this action to seek a High Court ruling on the boundaries between private and business activities when employees are traveling for work purposes. Workers need to be clear about their entitlements and employers should have an understanding of their responsibilities and how to support their staff.”

The saga continues and I will return to this issue once the application for leave to the High Court has been determined.

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

Motor vehicle accidents/Transport accident claims.

The Transport Accident Commission (TAC) was established by the Transport Accident Act 1986. The Act was set up to compensate injured persons resulting from transport accidents.

If you have been injured in a Transport Accident, you must make a claim with the TAC within one year of the accident. However in exceptional circumstances the TAC can extend this to 3 years.

Entitlement to compensation:

Under the Transport Accident Act, a person injured as a result of a transport accident may be entitled to compensation.

Some exceptions may apply for example where you were racing, drink driving, unlicensed or driving an unregistered vehicle.

Definition of “Transport Accident”

A transport accident is defined as an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.

To be entitled to compensation your injury must also be directly caused by the driving of a motor vehicle, a railway train or a tram.

Definition of “Motor Vehicle”

Motor vehicles include motor cars, motor cycles, trucks and buses that are used, designed or intended to be used on a highway.

BENEFITS/ ENTITLEMENTS

A. NO FAULT BENEFITS

1.      Loss of earnings ( LOE )

You are entitled to 80% of your pre accident weekly earnings up to the statutory maximum of $1170.

If you remain incapacitated after 18 months and before 36 months post-accident you may be entitled to loss of earning capacity benefits.

Unless you can establish that you suffer from a Whole Person Impairment of 50% or more, weekly payments will cease after 3 years.

2.      Medical and like expenses

Medical and like expenses can be defined as expenses relating to reasonable medical treatment and expenses arising as a result of being incapacitated.

In order to qualify for reimbursement of these expenses you must meet the statutory threshold ($584 ) unless you were admitted to a hospital as an inpatient for one day or more in which case the medical excess does not apply.

The medical and like expenses you wish to claim must be seen as reasonable. In most circumstances a letter from your doctor to the TAC outlining the need for treatment will be sufficient.

3.      Lump sum compensation 

When your injuries are considered substantially stable and a minimum of three months has elapsed since the accident you are entitled to be assessed as to whether you qualify for lump sum impairment benefits.

In order to establish the threshold you need to establish that you have a Whole Person Impairment of 11% or more when assessed in accordance with the 4th Edition of the American Medical Association Guidelines to Permanent Impairment (AMA Guides).

For accidents occurring on or after 16 December 2004 the current statutory minimum for an assessment of 11% Whole Person Impairment is $6,860 with the current maximum being $313,540.

4.      Dependency claims 

A dependent partner or child of a person who dies as a result of a transport accident is entitled to lodge a claim for compensation. A claim must be made within 1 year of the accident and in exceptional circumstances 3 years.

A dependent is generally considered someone who is wholly or mainly dependent upon the deceased for economic support.

Dependants are currently entitled to weekly payments equivalent to 80% of the deceased’s earnings, up to a maximum of $1,170 gross per week, as well as funeral costs and counselling.

A dependent partner may also be entitled to a one-off lump sum. This benefit ranges between $82,345 and $164,690 depending on the person’s age, family circumstances or any prior impairment payments.

Dependent children : The TAC can pay a one-off lump sum of up to $164,690 to the dependent children. This sum is held with the State Trustees until the children reach the age of 18.

If there is more than one dependent child, this lump sum will be divided equally between the dependent children.

A dependent child is defined as being under 16 years of age, or aged 16 to 25 and a full-time student, but does not include a child who has a spouse or partner.

B. COMMON LAW CLAIMS

A common law claim must be pursued within six years of the date of injury although this can be extended in some circumstances.

In order to be successful with a common law claim you must prove the following elements :

1. Serious Injury 

This is a gateway provision. Unless you can establish you have a serious injury you are unable to pursue a common law claim.

Serious injury is defined as follows :

  1. A 30% or more Whole Person Impairment under AMA 4 – this is called a “deemed” serious injury.

2. A serious long-term impairment or loss of a body function;

3. A permanent serious disfigurement, such as scarring;

4. A severe long-term mental or severe long-term behavioural disturbance or disorder;

5. A loss of a foetus.

When assessing whether you satisfy the definitions under 2. , 3.  and 4.  a Court will look at how you have been subjectively affected by your injuries. In other words a Court will look at the consequences the injuries have had on you personally.

2. Negligence 

If you have been assessed as suffering from a serious injury you will then need to establish negligence (at least in part) against another party.

If you are successful with establishing both elements you will be entitled to damages.

Damages compensate you for for pain and suffering and loss of enjoyment of life up to the statutory maximum of $487,100 and economic loss ( loss of earnings ) up to the statutory maximum of $1,096,020.

 

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

Compensation crackdown from WorkSafe Victoria.

Here’s an interesting article by Lucille Keen from the Australian Financial Review from 7 August 2013 about Worksafe’s way of playing hard ball with workers in relation to their entitlements. If you have received an adverse decision from Worksafe you should immediately seek legal advice from a specialist.

 

Compensation crackdown from WorkSafe Victoria

 

Victoria’s work protection body has cracked down on payments to injured workers, with a 43 per cent increase in the number of disputes arising from benefit terminations.

A recent report showed disputes with WorkSafe Victoria had increased by almost 15 per cent between the April 2011 to March 2012 period, and April 2012 to March 2013 period.

Even more startling was the 43 per cent increase in the number of disputes arising from the termination of WorkSafe payments.

The report also showed the number of long-term entitlement disputes had increased by 22 per cent. Disputes over the payment of medical and similar services had increased by 20 per cent during the same period.

Inappropriate rejections

WorkSafe is “inappropriately rejecting claims”, Victorian Community and Public Sector Union Work Cover services director, Geoff Lewin said.

“The figures confirm that WorkCover’s agents [the insurance industry] have got out of control, rejecting and terminating workers’ entitlements without any real scrutiny from WorkSafe,” Mr Lewin said.

“Agents are reversing the onus of proof, rejecting claims, and forcing workers to either walk away, or proceed to the court for justice.”

He called for a parliamentary inquiry into the conduct of agents and WorkSafe as a result of these figures.

“It is inappropriate for injured workers’ entitlements to be determined by the Victorian WorkCover Authority (WorkSafe) who is also the regulator,” Mr Lewin said.

“The dual position of the Authority is not acceptable, and an independent Regulator should be immediately set up to regulate the scheme without bias.

Agent representatives’ have made clear that they are bound by instruction from the Authority in rejecting claims, and not resolving them through the disputes processes of the Accident Compensation Conciliation Service.

The regulator can refuse to make payments beyond a conciliation conference, or only partially reimburse injured workers for medical bills relating to their workplace injury.

The union claims that WorkSafe had rejected claims at more than twice the rate of its counterpart in NSW ­Workcover.

The figures come after WorkSafe executive Denise Cosgrove said those on long-term benefits should be cut like “low-hanging fruit”.

Last year the Victorian government announced it would take $471.5 million in dividends out of the Victorian WorkCover Authority over the next four years in order to prop up the state’s budget, but claimed it would not affect services or jeopardise workplace safety.

A spokesman for WorkSafe said the authority and its agents were committed to providing “fair and high quality service” to injured workers and employers.

Cracking down

It rejected suggestions that it was ‘cracking down’ on the entitlements of injured workers.

It said that any change to an injured worker’s entitlements was done in full accordance with the Accident Compensation Act 1985 and the conciliation system was designed to ensure “that such sensitive decisions can be reviewed at any time by an independent umpire.”

WorkSafe reported in March that a surge in common law claims had dented the financial performance of the state’s workers compensation scheme.

A spike in already rising levels of common law claims added about $150 million to liabilities for the half year.

 

Here’s the link to the article:

http://www.afr.com/p/national/work_space/compensation_crackdown_from

 

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

State Government to reduce victims’ of Transport Accidents right to sue for damages.

The government looks set to significantly curtail the common law rights of people injured in Transport Accidents by narrowing the criteria for serious injury as The Age reports on 17 October. Rather than delivering “consistency” this move seems to be driven by cost-cutting ( despite high profits ) and seemingly reinforces old stigmas and prejudices about mental illness.

Here’s the article:

Law reforms to save on TAC injuries bill

People who have been injured in car accidents will find it harder to claim compensation for severe long-term mental illness under reforms expected to save the state government millions of dollars.

The Transport Accident Commission (TAC) can award compensation to people it deems have suffered a serious injury as a result of a transport accident, which includes those who have developed a severe long-term “mental, behavioural disturbance or disorder”.

Changes to the law which governs the commission, introduced on Wednesday, significantly limit the definition of a severe mental injury.

Under the changes, only people who show symptoms of a “recognised mental illness”, a consequent disability that has not responded “to known effective clinical treatments” and who have a “severely impaired function with symptoms causing clinically significant distress and severe impairment in relationships and social and vocational functioning” for at least three years can claim damages.

Assistant Treasurer Gordon Rich-Phillips said the TAC had worked with the Chief Psychiatrist on “a definition of severe mental injury which is consistent with the views of modern medicine”.

Mr Rich-Phillips said the government was not seeking to restrict access to compensation, but to ensure that compensation claims for mental injury were made “consistently”.

Asked if he believed the definition’s introduction would reduce the number of people able to claim compensation for severe mental injury, he said: “If they are people with a genuine mental injury, meeting that criteria, then no. The intent is not to restrict access to common law benefits, it’s to ensure they are dealt with on a consistent basis.”

“People getting compensation for a serious mental injury should be getting it on the basis of this type of definition anyway,” he said.

TAC lawyer John Voyage called the new test “inhumane” because it would exclude many people who suffered serious long-term psychiatric difficulties. “It was plainly intended to reduce the number of people who receive compensation for psychiatric injury,” he said.

Geraldine Collins, president of the Australian Lawyers’ Alliance, said it was “difficult to see how it would have been considered by people who have an understanding of psychiatric help. It’s also a problem because not infrequently people will not go and get assistance for many years.”

Luke Donnellan, shadow minister for road safety and the TAC, said the changes would save the government “tens of millions of dollars” and showed the Coalition was “more interested in delivering a budget surplus than ensuring the proper care and compensation for seriously injured Victorians”.

Mr Rich-Phillips rejected Mr Donnellan’s comments and would not be drawn on how much the change might save, but said that overall the reforms, which include a fixed costs order on the legal costs associated with TAC claims, would save the government between $30 and $35 million.

The TAC has added $176 million to the state government’s coffers after making a $973 million profit this year.

The dividend to its “sole shareholder” was the highest paid in the past five years.

Here’s the link for this article : http://www.theage.com.au/victoria/law-reforms-to-save-on-tac-injuries-bill-20131016-2vn07.html#ixzz2hw10aymu

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

TAC overhaul ‘like salt in the wound’.

I recently wrote about the impending changes to the Transport Accident Act and how these changes will affect road accidents victims’ rights to sue for psychiatric injuries. Here’s another article from The Age of 26 October 2013. It is noteworthy that eminent psychiatrists like Nigel Strauss consider these changes so severe that no one would be able to successfully claim for psychiatric harm. Maybe this is the  “consistency” that Assistant Treasurer Gordon Rich-Phillips had in mind in my last post.

Here’s the transcript of the article:

Rohan Moore was at home looking after his two children on the day of the car crash. His pregnant wife Lauren was on her way to a birthday party – her father the designated driver – when a motorist ahead took an illegal U-turn across double white lines. There was no chance to stop.

Mr Moore says he remembers the aftermath as though it happened yesterday: the injuries to Nicole’s neck and back; the emergency caesarean section to deliver their premature baby, Grace; her bones broken from the impact. Above all, he remembers the moment Grace died in their arms after the gut-wrenching decision was made to take her off life support.

The 35-year-old father says he suffered trauma, pathological grief and adjustment disorder because of the incident. But under changes to the Transport Accident Commission scheme, to be debated in Parliament this week, people like him will find it much harder to claim compensation for severe long-term mental illness.

“Both my wife and I lost our daughter, and for the government not to include me means I’m not being recognised,” he said. “The money doesn’t bother me. It’s more about the trauma and the ongoing impact. It’s like rubbing salt in the wound.”

Among the proposals, for the first time there will be a clinical criterion for what constitutes a severe long-term mental injury or behavioural disturbance. To qualify for compensation, people will have to prove that, for at least three years, they sustained a “recognised” mental illness or disorder as a result of an accident. They also have to prove they did not respond to treatment over that period and their relationships, social life and work have been severely impaired.

Psychiatrists have written to the government warning that the changes will make it almost impossible for anyone to lodge a successful claim. Apart from the definition being too limited, they say the notion of a mental injury over a “continuous period” does not take into account the fact that mental illness, by its nature, tends to fluctuate.

“The wording of the legislation is so severe that we think no one will be able to succeed,” said South Yarra psychiatrist Nigel Strauss.

Opposition Leader Daniel Andrews described the changes as a “cruel attack” on the rights of victims of road trauma, while Maurice Blackburn lawyer John Voyage said: “If the changes to the TAC laws go through as they stand, it will be very hard for someone to qualify as seriously injured for psychological/psychiatric injury, no matter how terrible the accident or events they witnessed.”

Assistant Treasurer Gordon Rich-Phillips defended the move, pointing out that people could still claim under TAC’s no-fault scheme, and that counselling for victims’ families would increase under the legislation. He said the reforms were necessary to stop people exploiting loopholes in the system and to “ensure that compensation is going to people with injuries”.

“The community accepts that if you’re in a car accident … you’re entitled to compensation,” Mr Rich-Phillips said. “I don’t know if the community would be entirely accepting if you weren’t in an accident, but you make a claim relating to someone else’s accident.”

You can look up the full article here:

http://www.theage.com.au/victoria/tac-overhaul-like-salt-in-the-wound-20131026-2w8wt.html#ixzz2j3snUqRS

 

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

War of Words over proposed changes to the Transport Accident Act.

The debate around the government’s plans to amend the Transport Accident Act is heating up with leading psychiatrists responsible for drafting the current guidelines for evaluating mental harm slamming the proposal for being too harsh and for the total lack of consultation by the government. The government is persisting in its charade that the proposed changes are not designed to reduce road accident victims’ entitlements.

Here’s the transcript of an article in today’s Age :

Psychiatrists lash out at accident compo plans

Many people who should be eligible for mental-injury compensation as a result of transport accidents would be excluded under proposed state government changes, say two psychiatrists who created the tool used to assess claimants.

Dr Nigel Strauss and Dr Michael Epstein, who co-wrote The Guide to the Evaluation of Psychiatric Impairment for Clinicians with Dr George Mendelson, said none of them were consulted on a government bill that, if passed, would leave fewer people eligible for compensation from the Transport Accident Commission for mental injuries incurred as a result of accidents.

This follows Fairfax Media’s report on Tuesday that emergency services workers such as paramedics and firefighters would be among those excluded, with the changes also removing compensation for people who develop a mental illness despite not being in an accident or witnessing it.

Together with Dr Nathan Serry, the psychiatrists wrote to the state government last week on behalf of Victorian psychiatrists at the Australian Medico-Legal Group to oppose the changes.

They wrote that the current test, which involved independent medical examiners assessing a person’s social interactions, job and general health, had worked well for years.

“We as psychiatrists in clinical practice are particularly concerned about the impact of such legislation on the more marginalised members of society … the selective wording of the proposed legislation discriminates unfairly against those who have a severe long-term mental disorder.”

Assistant Treasurer Gordon Rich-Phillips, who introduced the bill this month, said: “The government simply wants to ensure there is a clear, modern definition of what constitutes a serious mental injury for the purposes of access to common law damages.”

Asked why the psychiatrists behind the clinicians’ guide were not consulted, Mr Rich-Phillips said the TAC was “already making arrangements to meet with stakeholders including the Australian Medico Legal Group. The TAC has also consulted with the [Australian Medical Association], which represents the medical profession”.

The psychiatrists agreed the law should define serious mental injury but said many people would be excluded from compensation under the proposed definition.

In order to gain compensation, the changes require people to have a “severely impaired function” with symptoms that cause impairment in their “relationships and social and vocational functioning” for at least three years.

Dr Strauss said the new criteria, developed with the state’s Chief Psychiatrist and the Health Department, were “far too harsh” and most seriously ill psychiatric patients would miss out on compensation under them.

He said the government “should have talked to the people who actually do the work” in the field.

“[The new definition] … makes it almost impossible. There has to be much more room to move as there has been traditionally,” Dr Strauss said. “Very few people are going to get [compensation] and many people who deserve to won’t.”

Dr Epstein said one-third of otherwise eligible people would be excluded from compensation under the proposed definition, which he described as a product of “sloppy drafting”.

“Mental illness is often episodic; it comes and goes, particularly with a transport accident anniversary, when people become a lot worse,” he said.

Many people in country Victoria would be left out because they could not access mental health services. Retirees would also be excluded because they would not be able to prove that their illness had left them unable to work.

Ambulance Employees Australia, the United Firefighters Union and the Police Association held a rally on Tuesday to oppose the proposed changes to the Transport Accident Act.

Speaking to about 80 union members, Opposition Leader Daniel Andrews said Labor would vote against the bill this week and if it passed anyway, would “undo that damage” if Labor was elected in the next state election.

Mr Rich-Phillips said in a letter to Ambulance Employees Australia that there were no proposals to treat emergency services workers any differently to how they are treated now and they would continue to be able to access compensation through Workcover.

Here’s the link to the article :

http://www.theage.com.au/victoria/psychiatrists-lash-out-at-accident-compo-plans-20131029-2wdxg.html#ixzz2j9XESdLU

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

WorkCover hurts rather than helps the injured: report.

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.

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.

Bykauthenlegal

Injured at work – what now ?

You have been injured at work – where to from here ?

This post contains a few handy hints regarding the steps you need to take to enable you to obtain the compensation you are entitled to.

  1. Notify your employer of your injury.

Employers are obliged to keep a register of injuries where you can record details of your injury. If need may be, you can ask someone else to do this on your behalf. You should attend to this as soon as possible and ideally no later than 30 days after your injury has occurred. In the event that your injury was the result of a motor vehicle accident in the course of your employment, you must also notify the police.

  1. Obtain medical treatment.

Depending on how serious your injury is, you need to decide whether to go to a GP or your nearest hospital. It is important that you explain clearly the circumstances of your injury to your treating medical practitioner. If you need to take time off work as a result of this injury, you should ask your medical practitioner to provide you with a WorkCover medical certificate. An initial WorkCover certificate can be for a maximum of 14 days and any subsequent certificates for a maximum period of 28 days. You will need this certificate when lodging your WorkCover claim.

  1. Lodge your WorkCover claim.

To make a claim for time off work as a result of your injury and/or claim reimbursement of your medical and like expenses, you must complete a Worker’s Injury Claim Form. You can find the claim form at any Post Office, or alternatively you can print one out here:

https://www.worksafe.vic.gov.au/resources/workers-injury-claim-form

Once you have completed and signed your claim form, you may serve it on your employer either by giving it to your employer in person or sending it by mail.  If you are claiming for time off work, you must also give a WorkCover certificate to your employer. Make sure you keep a copy of these documents for your own records.

Your employer has 10 days to forward the claim to its WorkCover Insurer.

If your employer refuses to accept the claim form, you can lodge it directly with Worksafe at 1 Malop Street, Geelong 3220.

Within 28 days of receipt of the claim form the WorkCover Insurer must make a accept or reject the claim. This time limit does not apply if you only claim for medical and like expenses.

Been injured and seeking compensation?

We can help you whether you've been injured at work, in a motor vehicle collision or due to a defective product or assault. Contact us to talk to one of our lawyers about your case. It's free and confidential.