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Tim Driscoll

Workers’ Compensation for Slip on Construction Site

Construction workers experience some of the most dangerous conditions of any workplace. In the course of their day-to-day jobs, they handle heavy machinery, hazardous chemicals, extreme heights, and are exposed to the elements. Unsurprisingly, along with emergency services, these conditions make construction sites some of the most dangerous workplaces in Australia. According to Safe Work Australia, in 2017 the construction industry saw 33 on-the-job fatalities, with 21 reported in 2018 at the time of the report, making the construction industry the third-most dangerous industry in which to work.

Common construction hazards

Due to the highly demanding nature of construction jobs, there are a number of common causes for both injury and fatality:

  • Chemicals: Construction sites often make use of hazardous chemicals which can cause chemical burns or poisoning with immediate contact, as well as long term respiratory illnesses.
  • Noise: Construction sites use loud machinery and equipment such as power tools, jackhammers, bulldozers and more. Long term exposure to these noisy machines can result in headaches, ringing in the ears and even hearing loss, often called ‘industrial deafness’.
  • Exposure to the elements: Most construction work takes place outside while exposed to sun, wind and inclement weather. Sun exposure can cause sunburn, skin cancer, dehydration and heatstroke, particularly in certain areas of the country. Windburn can also damage skin, and inclement weather such as rain or high winds can lead to unfavorable working conditions and contribute to other mistakes and malfunctions.
  • Vehicle accidents: Construction work requires the use of heavy driving equipment including big trucks, earth-moving cranes and excavators which can cause a great deal of damage if involved in an accident, malfunction, or are mishandled. Additionally, when construction workers are on the road, they run the risk that drivers are not exercising the necessary level of caution and can hit them causing injury or death.
  • Moving or falling objects: Heavy lifting, either manually or with machinery, is a standard activity in construction work. Unfortunately, even a small miscalculation can result in death and injury with an object falling from overhead.
  • Slip & falls: As with any workspace, slip and falls are inevitable. However, with loose tools, debris and slick materials, construction sites are particularly rife with risk.
  • Height work: Many construction jobs deal with erecting buildings. This means working on ladders, scaffolds, or barely constructed upper floors. Falling from one of these areas will often result in extreme injury or death.
  • Electrocution: Working with exposed wires, faulty cords, or downed powerlines can result in a powerful electric shock.
  • Machinery: In addition to the larger equipment mentioned above, smaller tools such as power saws, drills, nail guns and electric sanders also pose a significant threat to safety as improper use or malfunction can cause cuts, punctures, bruises, lacerations and amputations.

Workers’ compensation for construction injuries

If a construction injury was caused by another person’s negligence, carelessness or a machinery malfunction, the injured party may be able to claim under a workers’ compensation scheme. All employers are required by law to provide their workers with: safe work systems, properly maintained machinery and equipment, safely maintained work environment, adequate facilities, adequate training, sufficient supervision and thorough instruction.

If your injury is the result of negligence by your employer to provide any of the proceeding work conditions, you may be able to file a claim and receive personal injury compensation. Luckily, this can cover injuries that affect you in the short term or in the long term, including late-onset injuries (cancer, illness, whiplash, etc.) and aggravations of pre-existing conditions (ligament tears, knee, back and hip injuries).

Claims against other contractors

Construction sites usually have many companies working with or around you. If a construction injury was caused by the negligence etc. of or more of these businesses, that is, a person who is not your employer, then you might also be able to file a claim against them.

What you may be able to claim

General damages: These damages cover the pain and suffering that you experience due to your injury. If your quality of life is permanently reduced, you may also be compensated in relation to that.

Medical costs, including hospital and rehabilitation: After an injury, you will be required to undergo diagnosis and treatment. Depending upon your injury, you may also need to receive rehabilitation service or home care, surgery, hospitalisation, or the use of special equipment such as braces or a wheelchair.

Loss of present and future income: While you are out of work to take care of your injury, you will not be receiving your usual wage. You may be able to recover lost wages, both in the present and in the future depending upon the circumstances and the severity of your injury.

Personal Injury Lawyers Sydney

What is WIRO?

Established in 2012, WIRO – the Workers Compensation Independent Review Office – is an independent statutory office. But what function does it serve and how can it help you?

In short, WIRO is meant to help resolve disputes between employees and insurers in workers’ compensation matters. If and when a claim is denied or an employer needs assistance navigating the world of workers’ compensation premiums, WIRO may be able to provide assistance. The distinctive thing about WIRO is that they attempt to resolve these issues for free while avoiding litigation and an adversarial process.

WIRO are contactable on 13 94 76.

Workers’ Compensation in Australia

From 2012-2013, SafeWork Australia reports that 117,815 serious compensation claims were made by workers throughout the state. Due to the physically demanding and dangerous nature of their jobs, it is unsurprising that the most common types of workers’ compensation claims were made by labourers, machinery operators and drivers. Back injuries are extremely prevalent and because they tend to have slow-to-appear symptoms, they often result in long lasting and expensive consequences. Other commonly claimed injuries include hearing loss, vision loss, shoulder injuries, and psychological injuries. All of these are claims that WIRO can help with.

How WIRO Can Benefit the Employee

Workers’ compensation exists to aid and protect workers who are injured in the course of their employment. A complicated insurance process means that many injured workers can become overwhelmed or frustrated by the often complicated claims process. Even more so when something ‘goes wrong’. What if the insurer decides you’re able to go back to work before you’re ready, or rejects your claim? In addition to the confusing nature of workers’ compensation, you would then be forced to try and fight against your insurer, potentially while dealing with the effects of a serious injury.

This is where WIRO can step in and help. WIRO focuses on dealing with the insurer in a number of ways. When a claim is denied, payments are delayed, medical treatment is debated, liability is refused, claim determination is overdue, or payments are reduced, WIRO may intervene.

How WIRO Can Benefit the Employer

While employers are often the first place injured employees go to for guidance, they are also faced with an abundance of challenges when coordinating with insurers to handle liability issues. Not only are they torn between protecting their employees and defending their business from liability, but they have the obligation of dealing with insurance companies. Again, WIRO may be able to help. By referring to WIRO, employers faced with workers’ compensation issues can receive aid with:

  • management of claims and handling;
  • calculating compensation premiums;
  • determining compensation premiums;
  • liability concerns (including claim acceptance or denial);
  • any action taken (or NOT taken) by the specific insurer.

WIRO’s Complaints Handling Process

First, WIRO requires you to seek a review of any compensation issues with your insurer before coming to them for aid. Once all other avenues of relief have been exhausted, then WIRO can step in an offer assistance. WIRO focuses on the use of Alternative Dispute Resolution techniques first and foremost and will only resort to a more formal and in-depth investigation if all other attempts at resolution have failed.

If WIRO cannot obtain a resolution to your problem, then WIRO may refer you to a WIRO approved lawyer for assistance. We here at BPC Lawyers are able to assist you in such an eventuality.

Can You Still Make a Compensation Claim Years After You’ve Been Injured at Work?

In this podcast, personal injury lawyer, Tim Driscoll discusses the possibility of making a worker’s compensation claim even years after the accident had happened.

New Speaker

You’re listening to a BPC podcast.

Dan:

Every year, thousands of Australians are injured at work through no fault of their own. The good news is that a majority seek legal help to recover compensation for any economic loss and medical expenses that they may have incurred as a result of the accident. Sadly, there are those that choose not to act, only to find out years later that the injury sustained is now having an impact. In this context, is such a person able to claim compensation years after the event? Well, I’m with Tim Driscoll, a personal injury lawyer from BPC Lawyers. Tim, what’s the answer for these people in this circumstance?

Tim Driscoll:

Well, yes, there is a very limited time period in which people must make a claim for compensation, particularly in workers’ compensation in New South Wales. For most workers, they have a period of only six months from the date of injury to actually lodge a claim for compensation. Now, there are some exceptions, however, and those exceptions apply for people who have what’s called a legitimate excuse for not bringing that claim within six months. Those exceptions effectively are about a person who was ignorant, or mistaken, or was outside of New South Wales, or for some other similar excuse, but still were able to make their claim within three years of the accident, but there’s some more joy for those people who make a, who have a claim for injury, which, for an injury which is substantial or has suffered what is called a serious and permanent disablement. For those people, they’re able to bring that claim outside of that three-year period, but it is a very unusual situation that the courts will grant any further leave above that last provision there.

Dan:

Tim, what about if, say, a worker is under the age of 18 at the time of the accident? Does that change anything?

Tim Driscoll:

Not really, not for workers’ compensation benefits. There are other jurisdictions where the age of the particular applicant may very well change that situation, but most people who have a work-related injury ordinarily are either apprentices, or those who are, obviously, over the age of 18. If they are, however, having some form of incapacity because of their age or what not, then they may be able to apply for some compensation outside of that six-month period for those issues, for those exceptions that I provided for, including ignorance, mistake, and so forth.

Dan:

Tim, what would be an example of ignorance or mistake?

Tim Driscoll:

Well, ignorance, I suppose, for example, if an injured worker was of the view held by, for example, a general practitioner or their employer that they didn’t have to make a claim within a certain period of time, or perhaps they’ve never made a claim for compensation before and thought that their rights were otherwise protected by some other means of compensation, then that kind of ignorance or mistake would most certainly see a higher degree of probability that they’ll overcome that six-month period restriction.

Dan:

Tim, I’m assuming that these applications, can be quite problematic, but I’m also assuming that to run one of these matters could also be problematic as well, given that, say, for example, an injured worker might have incurred the injuries 10 years previously, but yet in the duration of that time, there may well have been other injuries or antagonising factors that have also impacted upon that person’s ability or inability to continue to do work.

Tim Driscoll:

Absolutely, and the workers’ compensation legislation is very complex, and it certainly, when applying it to those very complex factual situations, means that injury workers should certainly seek some legal advice very quickly, because obviously, lawyers who are within workers’ compensation area of law, we’ve seen it all, and we know what to do and what issues come up within the Commission and how to deal with them appropriately.

Dan:

Tim, thanks for joining me.

Tim Driscoll:

Thank you very much.

New Speaker:

Thank you for listening. If you have any questions, please call BPC on 028 280-6900.

Claiming Workers’ Compensation for Old Injuries – Is My Surgery Covered by Workers’ Compensation?

In recent years, changes to relevant New South Wales laws made it difficult – if not impossible – for people whose work-related injuries worsened over time to seek compensation for necessary treatment, including surgery. But this could soon change, thanks to a recent NSW Workers Compensation Commission ruling in the case of a retired railway worker.

The worker, Sam Baldacchino, hurt his knee on the job while working for Pacific National (then Freight Corp) back in 1999. The injury worsened over the years, causing the joint to deteriorate so much that doctors recently advised him to have it replaced.

By 2016, there was ample evidence that:

  1. The joint deterioration that occurred over time was related to a work-related injury sustained in 1999;
  2. He needed the knee replacement because of the initial injury; and
  3. The surgery meets the legal criteria for an ‘artificial aid’ under relevant laws.

Even so, the case went to arbitration, where the insurer made several arguments. After the Arbitrator found its first contention lacked merit – namely that the surgery was unrelated to the initial injury sustained on the job – the insurer raised two additional contentions about Mr Baldacchino’s right to “claim surgery.”

First, the insurer pointed out that he was no longer eligible for additional weekly benefits, and it had been more than five years since his receipt of such payments ended.  This is an important distinction because of two new provisions in section 59A of the Workers Compensation Act 1987.

Subsection 59A (1) specifically states: “Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.

Furthermore, subsection 59A(2)(b)(ii) defines a five-year compensation period as one applied to a work-related injury resulting in a legally acceptable degree of permanent impairment that begins on “the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).”

Based on these provisions, the insurer argued, Mr Baldacchino had no right to any compensation for his knee replacement surgery.

However, another new stipulation in section 59A of the Workers Compensation Act 1987, lists the exceptions to this rule. As per subsection 59A(6)(a), the time limits do not apply to “the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries).”

In this case, the insurer argued that the term “artificial aids” did not apply to knee replacement. In its opinion, the term only applies to “external” devices. However, the Arbitrator disagreed based on legal precedent, and his decision was upheld appeal.

Time will tell what happens next. Of course, the insurer could still take its arguments to the New South Wales Court of Appeal and even the High Court of Australia but even if it does, there is no guarantee it will prevail.

In any case, if the decision remains unchallenged, or if it is challenged and stands, it will undoubtedly make life easier for those who need knee replacements due to work-related injuries that have resulted in catastrophic joint damage over time.

Legal experts are also hopeful that other joint replacements will also be legally classified as “artificial aids” in this context, and there is some speculation that similar surgical intervention to treat worsening work-related injuries may also be included.

But what if you are currently suffering from the long-term effects of a work-related injury that doesn’t require joint replacement? Or what if you are suffering from the long-term effects of an injury that happened at work but wasn’t immediately evident?

In such cases, your chances of receiving compensation will probably depend on several factors. These include but are not limited to the nature of your injury, the extent of prior compensation, if any, and the nature of your claim for reimbursement.

Clearly, this is a complicated legal issue. And although there have been positive developments on this front, there is no guarantee that the Commission’s decision will stand. Furthermore, every case is different, and the outcome generally depends on the unique circumstances of each case.

If you were injured at work and the injury wasn’t immediately apparent, or it has gotten worse over time, it is important to seek advice from a qualified lawyer about any compensation to which you may be entitled. Because your physical, emotional and financial wellbeing are at stake, you should also seek advice from an experienced lawyer about your options if your claim has been denied. Don’t suffer in silence. Contact us today.

WorkCover Have Rejected My Claim in NSW: What Can I Do?

If you were hurt at work or you have been diagnosed with a work-related illness in New South Wales, you probably feel as if you’ve been put through the proverbial wringer.  In addition to the pain and suffering you’ve experienced, you’ve had to deal with the emotional and financial stress stemming from mounting medical expenses and lost income due to your inability to work.  To make matters worse, you’ve just learned that WorkCover have rejected your claim. The good news is there is something you can do.

In order to dispute WorkCover’s determination, it is important to understand why your claim was rejected. Of course, the reason will depend on the specific circumstances of your case.  Whatever their reason, they must provide you with their decision in writing.

In general, WorkCover routinely denies claims because:

  • The person making the claim does not meet the legal definition for a ‘worker’;
  • The illness or injury wasn’t entirely work-related, or
  • The compensation sought is excessive given the nature and extent of the illness or injury.

WorkCover may also reject your claim if no one saw what happened; if there are any inconsistencies between your account of what happened (on the initial accident report) and evidence (including medical records); if there is reason to believe you were under the influence of drugs or alcohol at the time of the accident; or if there is reason to believe you have a pre-existing condition that caused or contributed to your illness or injury.  By far, the most common reason for denial, however, is the failure to report the accident to a supervisor immediately.

With all of that being stated, there are a couple of things to keep in mind.  First of all, your legal classification as something other than a regular, full-time employee does not preclude you from seeking worker’s compensation.  Secondly, lack of witnesses is not automatic grounds for denial of the claim if you sustained a serious or catastrophic injury and there is no doubt as to how it happened.

It is also important to note that the way in which you can dispute WorkCover’s initial determination depends on where you work, because there are different rules for doing so in each state. In New South Wales, you can begin by asking the insurance provider for a review. You can do this by stating your reasons for the request on the application form supplied by the insurance provider.  You should also provide additional evidence or information to support your case along with this form. You should get an answer within 14 days.

In a best-case scenario, WorkCover will reverse its previous decision and accept your claim.   If it doesn’t, you still have options.

If the insurance provider stands by its initial decision upon review, your next step is to seek assistance from the Workers Compensation Committee (WCC).  Operated by the Government, the WCC addresses disagreements between worker’s compensation claimants and employers or insurance providers.  Depending on the circumstances of your case, WCC may assign someone who is well versed in worker’s compensation law, called an arbitrator, to help resolve the matter.

Bear in mind, however, that the WCC will not accept any new evidence at this time. Instead, it will only consider the merits of material you initially provided on the accident report and request for review.

You should also be aware that you don’t need to do all of this yourself.  At a time when you and your loved ones are likely feeling intimidated and overwhelmed by everything you’ve gone through, it is important to retain a skilled and knowledgeable worker’s compensation lawyer who can thoroughly assess your case and fight for your rights. To learn more about how we can help if WorkCover rejected your claim in New South Wales, contact us today.

workers compensation claim for sychological trauma

Psychological Trauma at Work: Can I Make a Claim in NSW?

For many Australian workers, dealing with a stressful workplace is par for the course. Tension with co-workers or supervisors, deadlines, difficult clients or customers and constant doubts about job security can all make for a challenging environment. Sadly, many Australians have also experienced workplace bullying or harassment and now suffer from depression and anxiety. If you’re dealing with any type of psychological trauma sustained at work, you may be able to apply for workers’ compensation in New South Wales.

To make a successful claim on these grounds, you must prove that you meet certain standards. Specifically, you must provide adequate medical verification that you suffer from a permanent psychological injury or similar condition caused by your job that interferes with your ability to function normally.

In and of itself, a prescription issued by your own doctor for time off to recover from work-related stress is not sufficient proof. Instead, you must see an authorised specialist trained to assess your condition. At your appointment, he or she will do tests to determine the extent of the emotional and/or psychological trauma you sustained. The specialist may also consider:

  • Medical reports;
  • Test results;
  • Statements from relatives, co-workers and friends, and
  • Your own statement (s).

If the specialist finds it is no less than a ’15 percent impairment of your whole person,’ you should be able to make a worker’s compensation claim for a chronic ongoing condition.

Nationally, more than 7,000 Australians receive compensation for work-related mental heath conditions each year, accounting for roughly 6 percent of total workers’ compensation claims. However, the total workers’ compensation payments made for these claims is more than $540 million.  A closer look at government data for FY 2010-11 through FY2014-15 also reveals that the typical reparations made for this type of claim totaled $24,500 in comparison to $9,000 for all other claims.

Successful claims generally provide reparation for lost wages stemming from your inability to work, medical expenses, and ancillary costs. However, the amount you will receive depends on the specific circumstances of your case.

Before you make a claim, you should be aware that it is s unlikely you will prevail if your condition stemmed from any action that can be legally classified as ‘reasonable management action.’ This includes a job transfer, demotion, dismissal or reassignment, as long as your employer can prove it was ‘reasonable.’ Under this definition, for example, mandated participation in a job assessment may also qualify as reasonable action.

Even if you aren’t eligible to make a worker’s compensation claim, you may be able to pursue other legal recourse if you suffer from psychological trauma resulting from workplace bullying. This is because the Fair Work Act includes anti-bullying provisions allowing the Fair Work Commission to make orders to stop the behaviour from continuing. However, be aware that settling a claim in the Fair Work Commission may mean that you cannot make a claim for workers’ compensation.

By far, the worst thing you can do if you have experienced emotional distress or are experiencing significant psychological trauma stemming from work, is to remain silent. After you’ve seen a qualified mental health professional, it is important to get the proper legal advice. To learn more about how we can help you make a worker’s compensation claim or pursue other legal remedies, contact us today.

what is a tpd or superannuation claim

What is a TPD or Superannuation Claim?

If you have been injured and are now unable to work there are a number of benefits (compensation) that you may be entitled to, including a claim under your superannuation policy, known as a TPD claim. In this video, BPC Lawyers’ Tim Driscoll explains in detail what these claims are and what you need to know to in bringing such a claim.

wistia fast
Injured at work? Am I Entitled to Workers Compensation, contact BPC Lawyers today.

I Have Been Injured on My Way to Work. Am I Entitled to Workers Compensation?

A worker who is injured at work is entitled to compensation benefits including (subject to restrictions) payment of medical expenses, compensation for wage loss, and compensation for permanent impairment suffered.

But what about traveling to work? Are you covered?

Travel to and from work

Ordinarily, you will not be covered for travel to and from your home to your place of work. It did always used to be the case however, recent changes have restricted the scope of workers compensation; Section 10 Workers Compensation Act 1987 (NSW).

However, once you reach work, further travel during work hours can be covered.

Exception – Travelling to work/work site for work sake

As you can appreciate, workers compensation law must determine who is covered in all types of work. Some industries see workers travel straight from home out to a work site, or are road based, such as truck drivers.

It is to those types of working based situations that the law protects. What needs to be established is that there is a, “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.” Section 10 (3A) Workers Compensation Act 1987 (NSW).

It is well settled that a worker, during their employment, can be on a journey from a place of abode to a place of employment at the same time. For example, in the case of Hooke v Rolfe (1986) 7 NSWLR 40, the New South Wales Court of Appeal was under no hesitation to find that motor vehicle accident can have multiple purposes in the sense of being both for employment purposes and for travelling to or from places of abode.

Hence, if your job is one which by its very nature requires you to travel, or even better you’re paid to travel for work, then you may have a claim under a whole number of different provisions designed to grant a positive right to compensation: Harvard v Illawarra Meat Co Ltd [1956] WCR 4 and Thompson v Lewisham Hospital [1978] WCR 111.

We have run many of these cases with great success.

In the matter of Zammit v The Bush Doctor (NSW) Pty Limited (2014) (Unreported 14 September 2014), an employee was employed to attend various bush sites to use pesticide.

He was driving his own motor vehicle and suffered a crash when a spider climbed up his arm. He was taking tools and products (herbicide) to the work site where he was directed to go by his employer.  He was paid an extra allowance for the travel.

Hence, the Senior Arbitrator (now Presidential member) Michael Snell (as in Maurino v Amberlor Pty Limited (1996) 14 NSWCCR 16) found in favour of the injured worker and found that this was not just a trip to work, but was a part of his work duties; thus, he was awarded workers compensation entitlements.

Conclusion

Many workers, like us lawyers, are office based. We travel from home to work by car, bus, train, ferry, bike or even just using our legs. Many injuries are suffered on our way to work (many at no fault of our own).

Regrettably, most workers have lost their right to workers compensation in these circumstances.

However, there are exceptions. To know if you fall into one of these exceptions, we need to look at the whole work situation – your employment contract, what you’re paid for, duties performed and the reasons for your travel.

If you’re injured in a motor vehicle it is best to contact our office to ensure that you obtain full access to any entitlements you may have.

Lodging a Worker’s Compensation Claim form. Contact BPC Lawyers for Consultation.

Lodging a Worker’s Compensation Claim form – when and why? 

A worker who is injured at work is entitled to compensation benefits including (subject to restrictions) payment of medical expenses, compensation for wage loss and compensation for permanent impairment suffered.

Injuries suffered in the course of employment can often need little by way of time off work or treatment. However, even the most innocuous incident can lead to considerable financial and medically disastrous results. They can, at first, seem not to have caused much by way of damage. However, it can take considerable time for symptoms to materialise or an employee may fear for their job if they make a claim.

When?

It’s imperative that workers lodge incident reports and workers compensation claim forms for all incidents to which they have suffered injury. These forms are available from your employer and must be provided upon request. It is also advisable to seek medical attention by your local medical physician so that your medical condition is documented and you obtain an opinion as to the severity of your condition. This claim form must be as comprehensive in detail as possible, including all injuries suffered, even when the symptoms seem mild at the time.

Why?

The Workers Compensation legislation sets time limits for the lodgement of claims. Any delay could mean that you lose the right to compensation. You must inform your employer that you have suffered an injury as soon as possible: Section 254 Workplace Injury Management and Workers Compensation Act 1998 (NSW).

If you did not inform your employer and wish to make a claim, you must show special circumstances, including:

  • That the employer hasn’t been placed into a position of disadvantage in responding to or dealing with your claim,
  • You did not tell your employer due to your “ignorance, mistake, absence from the State or other reasonable cause”,
  • Your employer knew about your injury anyway, or
  • Your employer reported the circumstances to the nominal insurer.

You must also then lodge your claim for compensation within 6 months of the injury: Section 261 Workplace Injury Management and Workers Compensation Act 1998 (NSW).

If you lodge a claim after the six month period, you must show special circumstances, including:

  • You didn’t lodge you claim in time due to some ignorance, mistake, absence from the State or other reasonable cause AND you made the claim within 3 years of your injury;
  • You didn’t lodge a claim in time due to some ignorance, mistake, absence from the State or other reasonable cause AND your work incident has caused serious and permanent disablement;
  • The insurer accepts your claim and fails to mention this issue, or
  • Your injury was only realised after the incident and you have complied with one of the conditions listed above.

Conclusion

We strongly advise you to immediately lodge a claim for workers compensation and notify your employer of any injury. This will ensure your rights to compensation aren’t taken away from you, especially if there is a delayed or late onset of a serious condition. Indeed, I have come across many situations where employers have attempted to convince workers not to make workers compensation claims, instead agreeing to meet their time off work and treatment expenses themselves. Whilst workers may wish to keep their employer happy for reasons of job security, it must always be borne in mind that such agreements with your employer are far from secured long term. Given the protection from termination for 6 months from your claim (Section 248 Workers Compensation Act 1987) and the common uncertainty as to how long your condition may take to recover, the prudent course must be to lodge a claim for workers compensation. Should your condition require surgery, or seems to be causing you serious and permanent financial and medical hardship, you should contact our office in order to seek advice as to what other rights you might have to compensation.

Timothy Driscoll LLM (Sydney) Associate of BPC 4 October 2017

Can I be fired whilst on Workers Compensation? Contact BPC Lawyers to know.

Can I be fired whilst on Workers Compensation?

Apart from the payment of workers compensation, an employer has an obligation to rehabilitate the injured worker, including, where able, to facilitate the worker into another position; whether that be within or out of the organisation.

However, as is becoming more apparent, employers are finding it easier to simply get workers off their books than having to deal with their rigorous obligations for the payment of compensation, rehabilitation and redeployment of workers.

So if you’re a worker who has suffered an injury at work and your employment has been terminated, what can you do? What rights are you afforded? 

An injured worker is afforded some protection from termination under Part 8 of the Workers Compensation Act 1987 (NSW). 

The extent of protection will however depend upon: 

  1. Whether you’re fit to perform your pre-injury job, and/or
  2. The reasons for why your employer terminated your employment.

Unfit to work in pre-injury employment

If you cannot do the inherent requirements of your job, your employer can terminate you.

However, it is a criminal offence for your employer to terminate your employment because you’re unable to perform such requirements because of a work injury IF they terminate you within 6 months from when you first become unfit for your pre-injury job.

Whilst this prohibition is a criminal provision, the conduct of your employer in terminating you because you make a claim for workers compensation will create a civil liability upon your employer, to which you can sue for modest compensation under the protections found in the Fair Work Act (Cwth).

This protection is only available to you if you comply with any reasonable request the employer makes to send you for a medical examination on the matter.

Fit to work in pre-injury employment

If an employer terminates your employment because you’re unfit for work (so they allege) due to a work injury which you’re fit to perform, then another remedy might be available to you.

If, after termination, you send your employer a medical certificate certifying you’re able to do you pre-injury job or another job up to the same vantage point as your old job, then the employer must reinstate you into that position which you have capacity.

Interestingly, if your employer wishes to allege that you’re not entitled to reinstatement as your injury is not work related, then they must overcome a presumption that says otherwise. That is, it is up to them to rebut a presumption that your termination was because of some non-work related condition.

Conclusion

The general rule has always been that an employer can terminate your employment for any reason at any time.

That still remains the general proposition at law.

But depending on the reasons or reasonableness for their decision might determine if and to what extent you can seek a Court or Tribunal to correct the effect of this decision.

For workers injured in the course of their employment, the Workers Compensation Legislation works (or at least is designed to work) hand in hand with the Fair Work Act 2009 (Cwth) to provide assistance above that of the ordinary worker who has had their employment terminated. However, as is seen in this article, the Court/Tribunals can have great difficulty in providing a fruitful remedy to an employer’s termination notice.

The question is what avenue best achieves the best outcome for the worker?

This is a question of fact and degree of the particular case, to which will need assessment by a competent legal advisor within the area.

If you have been seriously injured at work and are worried about the future in the workforce, then you should contact our office right away and speak to one of our accredited specialists.

Timothy Driscoll

Associate

14 August 2017

The Importance of the Section 81 Notice

The Importance of the Section 81 Notice

Can an insurer revise their position?

For people injured in a motor vehicle accident in NSW, there are strict time frames for the making of a valid claim for compensation. The 3 most important dates (from the incident) to remember are:

  1. 28 days – the need to lodge with the CTP insurer an Accident Notification Form;
  2. 28 days – the need to notify the police of the incident and obtain an event number (unless they attended the scene, and
  3. 6 months – the need to lodge a Personal Injury Claim form.

If the above are complied with, then the insurer must (upon receiving your personal injury claim form) make a decision about liability within 3 months.

This does not give the insurer a lot of time, and sometimes they fail to respond within 3 months.

What happens if the insurer initially accepts liability, but later, changes its mind? Can the insurer deny a claim in that circumstance?

The Gabriel & Mordue decisions

The fundamental principle is that the insurer IS bound by their formal Section 81 Notice. It can only amend that notice IF it is to change their decision from denying liability to accepting liability.

Accordingly, if the insurer accepts liability under a Section 81 Notice, any amended notice served at a subsequent time is of no effect.

Even if the insurer makes an honest mistake, it’s too late to amend.

There are however, exceptions which make this situation complicated. The two major exceptions are:

  1. The insurer can amend its Section 81 Notice to deny indemnity under the policy, and
  2. The insurer can go against their Section 81 Notice in Court proceedings.

Gabriel

In this case, the insurer admitted liability with an allegation of contributory negligence.

However, contrary to the admission of liability, the insurer attempted to change its position by denying liability in the pleadings once the matter went to Court.

In a 2:1 decision the NSW Court of Appeal held that the Section 81 Notice admissions did not bind the insurer once Court proceedings were commenced.

Modue

In this case a person was injured in a motor vehicle accident off road at a car rally.

The insurer at first admitted liability but later denied the claim as the CTP policy did not respond to loss for ‘off road’ accidents.

In a 2:1 decision the NSW Court of Appeal held that the ORIGINAL Section 81 Notice admissions of ‘liability’ were different to admissions of ‘indemnity’ and thus the insurer, QBE could rely on the amended notice.

Observations 

As can be seen, the principle that an insurer cannot go against its Section 81 Notice has qualification. If the insurer wants to, and can, they will try and get your claim into Court so that they can get around their notice as they’re permitted to.

People who are injured in a motor vehicle accident in which liability is not in issue should note that their claim doesn’t usually need to go to Court to be assessed but will go through an administrative process called CARS. If this is the case, then this forum will enforce against the insurer their 81 Notice.

However, an insurer does not have to accept the decisions of CARS and if that is the case, they can go to Court where their Section 81 Notice will not prevent them from denying liability (this is predominantly in relation to late claims).

That being the case, it is advisable that you contact a lawyer or firm with experience in Motor Vehicle accident claims so that you can avoid falling into the many traps that exist.

Timothy Driscoll

18 October 2016

Civil Liability And The ‘One Punch’ Laws

Civil Liability And The ‘One Punch’ Laws

Civil Liability and the ‘one punch’ laws. Security Guards, assault, and liability – who can I sue?

Case study: Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250

If someone assaults you could sue them for damages for the loss suffered including perhaps aggravated (punitive) damages for the egregious breach which you have suffered.

The question then normally comes who should/can I sue?

In certain circumstances, a legal entity including an individual or Corporation can be held to account for someone else’s conduct.

The most noticeable example is that of an employer being held liable for the conduct of its employees or the State of NSW being held liable for it’s Police Officers on duty.**

But what about security guards/bouncers at pubs or clubs?

Ordinarily, a security guard is employed by a security company – a $1 company with little if any assets or insurance. Hence, any action brought against security guards/bouncers for an assault will typically lead to a case of all liability but no means of enforcement of an order for compensation.

So what about the club or pub?

A recent case in the Court of Appeal in NSW named Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250 sought to attach liability to the owner of the principles arguing a new situation in which a person can be held to account for another’s actions.

In this case, a bouncer was hired by a security company called Checkmate. He was directed by the pub/club/hotel to remove a patron.

The bounder did so but used excessive force pulling the chair from underneath them causing the patron injury.

There was no doubt that ‘Checkmate’, the employer of the bouncer was liable. But they were no longer in existence! So that left the pub/club/hotel.

The Plaintiff argued that the pub/club/hotel were responsible because:

1. The acts were authorised by the pub/club/hotel,
2. The bouncer was the agent of the pub/club/hotel,
3. Section 91 of the Liquor Act implies agency and liability,
4. The pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.

All of the above arguments were rejected.

The Court found that the actions were not authorised, nor was he an agent at law or deemed under the Liquor Act, nor was there a principle enabling his non-employer to be held to account for his conduct.

The only glimmering light is that the Court of appeal felt bound by a higher Court’s precedent on whether a pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.

This leaves the door open for the High Court to clarify this issue which is of great significance. The ‘one punch laws’ and other policies regarding alcohol-fuelled violence and anti-social behaviour, causing government intervention to tackle the issue. Will the Common law follow suit? Time will tell.

There seems to me a least some policy grounds for the creation of such a responsibility. However, the fundamental condition of control seems to be lacking – the pub/club/hotel does not usually exert any sufficient control over the conduct of the bouncer past directing them to do something as opposed to the means of or training as to how to perform such bona fide duties.

If you have been assaulted by a bouncer and are suffering wage loss and/or require significant treatment – we suggest you consider obtaining legal assistance to determine any rights that you may have against a security company or perhaps a pub/club/hotel.

Timothy Driscoll
10 July 2014

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* Section 7 Law Reform (Miscellaneous Provisions) 1983 (NSW)

** Section 9B Law Reform (Miscellaneous Provisions) 1983 (NSW)

About BPC: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.