Category

Workers Compensation

Injured at Work? Don’t Forget About Your Superannuation Fund

Most Australians know that they can file a workers compensation claim if they get hurt on the job. But did you know that may not be your only option? You may also be able to make a claim through your superannuation account. This is because superannuation programmes generally offer various types of insurance coverage. This article provides a basic overview to familiarise you with this issue.

In general, insurance provided through your superannuation will provide coverage for any illness or accident resulting in an injury that prevents you from working.  However, one of the most fundamental and crucial issues to understand in this context is that there may be different rules associated with the insurance provided through different superannuation programmes.

Some funds will only offer insurance to active members – those who are making contributions – while others will continue to provide cover once you’ve stopped contributing.  In some cases you won’t be eligible for the coverage unless you ‘opt-in’. If your superannuation fund offers ‘default cover’ for its members, however, you will automatically qualify for the coverage. Many policies also allow you to make a claim even if you are no longer working and are not currently insured – but only if you were covered at the time you were hurt.

Another important point to bear in mind is that just because you have coverage, it doesn’t mean your claim will be successful. It is not unheard of for a fund to deny a claim without a valid reason, and so it is essential that you consult an experienced lawyer prior to pursuing this option.

The Types of Claims Available

A lawyer who is well versed in this area can do a comprehensive review of your situation and discuss what you must do in order to prove total and permanent disability (TPD).  A TPD claim is one in which you must demonstrate that you can no longer do the type of work you were doing when you were hurt, or any type of work for which you are qualified based on your education, training or experience.

The reason this is so critical is that TDP, or ‘disability cover’, is the type of insurance coverage most often offered as ‘default cover’ by superannuation funds. Furthermore, successful TPD claims typically result in single (lump sum) payments rather than payments made over time. How much you will get depends on several factors including the extent of your injury and your policy terms.

Depending on your unique circumstances and the provisions in your superannuation insurance policy, you may also be able to make claims for temporary disability or income insurance.  If you make a successful claim for the former, you’ll most likely get monthly payments until you can resume working. A successful income insurance claim usually results in compensation for up to 80 percent of your average income, with payments being made for a maximum of two years. You should also be aware that you can usually make these types of claims through your superannuation fund even if you’re already receiving reimbursement through workers compensation, and that you can make your superannuation insurance and workers compensation claims simultaneously.

More Than One Super Fund?

Another question that often arises in this context is what you should do if you have more than one superannuation account. If you follow conventional wisdom, you may be tempted to combine all of your accounts so you don’t have to pay any fees or premiums on any funds not in active use. That can be detrimental for insurance purposes, however, because different superannuation insurance programmes have different rules. If you combine all of your accounts without getting the proper advice, you may end up with insurance that doesn’t meet your needs.

In summary, if you have a superannuation account, you also have options if you are hurt at work. In addition to pursuing a claim through workers compensation, you may also be able to make a claim through the insurance associated with your super fund. Because different insurance plans offered through superannuation funds have different rules, you may have to opt-in to ensure that you have cover. In most cases, you will probably have ‘default cover’ as an active participant in a super fund but in order to make a successful claim with this type of insurance, you must usually prove that you have TPD. Finally, you should always consult a qualified professional about the insurance ramifications before you consolidate multiple superannuation accounts.

If you have been hurt at work and you want to know more about your options for seeking compensation through your super fund, it is important to get proper legal advice as soon as possible. Contact us for a free case evaluation now.

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.

Injured While Volunteering

Injured While Volunteering? Can You Receive Compensation?

Everyone knows that if you are injured whilst at work you are entitled to compensation to help offset the costs of your injuries.  Likewise, if you were injured due to the fault of an occupier, business owner or other entity you can make a public liability claim.

However, where do you stand if you are one of the growing tens of thousands of people in Australia who undertake some form of volunteer work?

What is a Volunteer?

A volunteer is generally defined as a person who provides services for a charity or other entity for free.  Volunteers may sometimes receive some reward for their efforts in the form of costs for travel, food or other modest benefits.

Workers Versus Volunteers

Generally, volunteers are not protected by the workers compensation legislation and cannot claim workers compensation when they are injured.  There are however often deeming provisions of the legislation that protect volunteers and entitle them to claim workers compensation.

Quite often the organisation that is being assisted will take out an accident policy which will provide for payment of medical expenses and limited other benefits when injury occurs.

Duty of Care Owed to Volunteers

The organisation that is being assisted by the volunteer owes to the volunteer a duty to ensure that reasonable steps are taken to prevent injury.  A breach of that duty may give rise to an entitlement to damages.

The Work Health & Safety Act 2011 (NSW) extends to someone who “carries out work in any capacity for a person conducting a business or undertaking”, which of course includes volunteers (s.7).  Also in New South Wales, the Workplace Injury Management and Workers Compensation Act 1998 Schedule 1 deems some volunteers to be workers.

Volunteer organisations have a responsibility to ensure the health and safety of all people who enter their premises.  If the workers compensation legislation does not apply then the organisation’s public liability insurer will cover the organisation for the compensation payable as a result of a breach of that duty.  The extent of the duty owed by the organisation will be dependent upon the nature of the environment, the type of work that is being performed and the general level of risk that the volunteer is exposed to.

Australian Work Health and Safety Act

Relevant workplace health and safety legislation in Australia does, in fact, recognise volunteers as workers and will protect the physical and mental health of a volunteer in the same way that it would protect a registered employee, and most organisations are covered under the legislation.  Consequently, both the organisation and the volunteer benefit; the volunteers are covered in the unfortunate event that they are injured in the course of business and the organisation is protected if they in some way contribute to the injury of an employee or volunteer.

Contact a Lawyer Today

Volunteers are a vital part of any economy and they deserve to have the same protections as regularly employed individuals.  Luckily, there is compensation available for volunteers who are injured in the course of their duties in Australia.  If you have been injured in your capacity as a volunteer, strict time limits apply to these matters.  Contact BPC Lawyers today.

 

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

Nervous Shock Claims

Nervous Shock Claims

Workplace incident at Barangaroo – Nervous Shock Claim

Lawyers have represented vast numbers of plaintiffs in successful nervous shock claims pursuant to the NSW Civil Liability Act 2002 since its inception.

Nervous shock claims can be brought by persons who have witnessed, at the scene, a victim being killed, injured or put in peril if it is accepted by the Court that they have genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

If a genuine psychiatric injury is suffered by a close member of the family of the victim who was killed, injured or put in peril, they need not have witnessed, at the scene, the relevant event.

The Civil Liability Act defines a “close member of the family” of a victim to include a parent of the victim or other persons with parental responsibility for the victim, or the spousal partner of the victim, or a child or step-child of the victim or any other person for whom the victim who has parental responsibility. The definition extends to siblings, half-brothers or half-sisters, step-brothers and step-sisters.

A “spouse or partner” is defined as a husband or wife or a defacto partner.

The Diagnostic Statistic of Psychiatric Injuries is used by qualified psychiatrists to report to the Courts on behalf of parties to litigation in relation to the effect that a particular event has had upon any witness to an event causing psychiatric injury.

Strict time limits apply in relation to bringing a claim for damages for personal injury, including psychiatric injury, pursuant to the Civil Liability Act. A three year limitation period is imposed in relation to commencement of court proceedings, which runs from the date of the relevant event.

It is expected that in relation to the unfortunate death of an innocent worker at Barangaroo in March 2017, there will be a coronial inquest that will shed light upon the circumstances that led to the death.

The findings of a coroner should not be pre-empted.

Any persons who have witnessed, and been psychologically affected by the unfortunate incident at Barangaroo are advised to consult medical practitioners for appropriate treatment.

Claims for damages for pure mental harm or nervous shock should only be brought by individuals who have suffered very significant psychological injury as a result of a particular event. The court process usually endures for beyond 18 months if matters are incapable of settlement.

The Civil Liability Act is designed to provide appropriate compensation to persons with significant injuries that negatively impact upon their ability to earn an income and which give rise to significant medical expenses.

The Courts, quite rightly, do not readily entertain cases that do not involve genuine psychiatric injury, as was intended by the legislators when the Civil Liability Act NSW 2002 was enacted.

BPC Lawyers have acted for injured plaintiffs for in excess of 35 years.

If you or one of your loved ones is affected by psychiatric injury which remains unresolved despite medical treatment, please contact one of our accredited specialists in personal injury law in NSW for a free initial consultation.

BPC  Lawyers act in nervous shock claims on a “no win/no fee” basis.

In cases involving serious injury or death, there will usually be a coronial inquest following police investigations and WorkCover/WorkSafe investigations.

BPC Lawyers have assisted family members to protect their compensation rights by appearing in numerous coronial inquests, including those involving construction site accidents and deaths.

BPC Lawyers take very seriously their duty to only bring cases on behalf of persons in circumstances where there is at the very least, a reasonable prospect of success, which is consistent with our obligations pursuant to the Legal Profession Uniform Law.

Cross-Examination: Making Life Easier in the Witness Box

Cross-Examination: Making Life Easier in the Witness Box

I hope for your sake that you never have to be cross-examined; it is never an easy or pleasant experience.

Questions are often confusing and repetitive and it is difficult in the moment to determine exactly the right words to use.  I have been required to give evidence on several occasions and have never enjoyed the experience.

There are however a few simple rules that can make life easier. For example, a witness should never use the term “never”.  Never is a very long time and our memory is not perfect, particularly under pressure. Had Barry O’Farrell, received this advice he may not have lost his job.

I tend to think that Mr O’Farrell was being honest when he suggested that he had “never” received a bottle of Grange, but if he had not been so dogmatic and replied, for example, “I do not recall ever having been given a bottle of Grange”, he would not have been in the same predicament.

If you are likely to give evidence in the near future you should ask your lawyer about what to expect and how you should deal with questions as they arise.

If you would like to discuss the rules of giving evidence, you can contact our Scott Hall-Johnston, or one of the other lawyers at BPC, to discuss the other rules about giving evidence.
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.

Permanent impairment benefits

Permanent Impairment Benefits And The High Court Decision Of Goudappel

Permanent impairment benefits and the High Court decision of Goudappel. The good, bad and the ugly… 

  1. On 16 May 2014 the High Court of Australia full bench (5 Judges) handed down its decision.
  2. Unfortunately, the High Court unanimously upheld the Appeal and reversed the NSW Court of Appeal’s decision.
  3. They did so in very brief fashion – some 67 paragraphs (ironically the same number as the provision which at one time gave pain and suffering benefits!).
  4. The effect of this decision has caused much a headache for both an injured worker and WorkCover.
  5. For workers, the decision effectively confirms the following.
  6. Firstly, there are 2 sets of rules – those who made a claim for permanent impairment benefits before 19 June 2012 and those who did not.
  7. Depending on when your claim for permanent impairment benefits (if any) has been made will depend on which system applies to your permanent impairment claim

The Bad – The 2 Systems

  1. Specific claim for permanent impairment benefits before 19 June 2012

i.         Your are entitled to permanent impairment compensation for WPI or Permanent loss under Table of Maims (for pre 2002 injuries) above 0%

ii.         If you are 10% WPI or received $10,000 or more under the Table of Maims, you are entitled to compensation for pain and suffering between $1 and $50,000.

iii.         You can make as many claims as you want if/when you condition deteriorates.

  1. For Workers who have NOT made a specific claim for permanent impairment benefits before 19 June 2012

i.         You must reach 11% WPI to get any compensation

ii.         You can only make one claim, and

iii.         You cannot get any additional compensation for pain and suffering.

Which one applies to me?

  1. Only those injured workers who have made a specific claim for permanent impairment benefits in writing before 19 June 2012 come under the first system.
  2. Normally workers injured will fill in a standard claim. The ordinary/general claim form is not sufficient.
  3. So if you injured yourself at work after 18 June 2012 or made a claim for permanent impairment benefits (even if you made you original claim) after 19 June 2012 then you fall under the old system.

 The Ugly – The dilemma for WorkCover

  1. As I have previously reported, the NSW Court of Appeal reversed the NSW Workers Compensation Commission’s decision effectively finding that if you made any claim for compensation before 19 June 2012 then the old provisions applied.
  2. WorkCover, on this advice, implemented its policy that it would pay workers in accordance with this decision.
  3. However, now that the High Court has reversed this decision, the question remains as to how WorkCover is to deal with current claims on foot.

WorkCover’s Response

  1. If an injured worker and a Scheme agent (or the representatives) have agreed in writing to the payment of permanent impairment compensation in accordance with the NSW Court of Appeal’s decision they will meet that agreement and pay that compensation.
  2. The effect of WorkCover’s agreement is that if you have agreed or have in fact been paid under the old scheme when you had no right to then, WorkCover will not come after you to reclaim this money.
  3. If however, your claim was not agreed at the time of the High Court Judgment on 19 May 2014 then you will miss out.

The Good – What has happened since the High Court decision?

  1. Some reprieve came for workers who made a claim for permanent impairment benefits before 19 June 2012.
  2. It was thought that if workers decided to seek a top up of permanent impairment benefits due to their condition deteriorating, then that claim would be brought after 19 June 2012 and thus come under the new scheme.
  3. That issue (to date) has been resolved. The Workers Compensation Commission determined that the 1st system would apply in all of its glory: Cauldield v Whelan Kartaway Pty Limited (2014) NSWCC PD 34.
  4. However, WorkCover may want to appeal this decision.
  5. The Scheme Agent themselves, however, cannot, as to do so would raise an issue not submitted/contended before the Commission. However, another scheme agent may wish to bring another ‘test case’ and challenge this decision in the Courts at a future date.
  6. Time will tell…

8 July 2014.

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

rights for Compensation for Permanent Impairment

Court of Appeal Decision on Worker’s Right to Lump Sum Payment

Workers Compensation Update

Your rights for Compensation for Permanent Impairment – Case note: Gaudappel v Adco Constructions Pty Ltd (2013) NSW CA 94

Traditionally, the New South Wales scheme of Workers Compensation has provided an injured worker for ongoing entitlements to compensation provided they could establish their employment was a substantial contributing factor for their need.

The three main entitlements were:

  1. Payment of your work injury-related medical expenses,
  2. Weekly wage compensation for incapacity to earn because of your work-related condition, and
  3. A small sum for any Permanent impairment caused by your work-related injury.

The new Workers Compensation Scheme has seriously eroded these rights, including an injured worker’s right to benefits for permanent impairment.

A right to benefits for permanent impairment is a right not often know by workers and rarely disclosed by the insurer/scheme agent.

Under the new scheme, a worker has to prove that their work-related injury results in a 11% or greater Whole Person Impairment rating.

It may not sound much, but this is a very high threshold to overcome.

However, there may be some relief for those who made a claim for workers compensation BEFORE 19 June 2012.

The New South Wales Court of Appeal has upheld an Appeal by an injured worker claiming benefits for a Permanent Impairment suffered as a result of his employment.

The claim was for less than 11% Whole Person Impairment.

He argued that as he had made a claim for compensation before 19 June 2012 then he did not need to meet the 11% threshold.

In essence, this decision provides that if you have suffered an injury and made a claim for Worker’s Compensation in any form before 19 June 2012 then you are entitled to claim benefits for whatever permanent impairment you have suffered.

If, your injury happened after have not made a claim for Worker’s Compensation benefits before 19 June 2012 than, you must reach a threshold of 11 % Whole Person Impairment before you are entitled to any compensation for Permanent Impairment.

Special leave to appeal this decision to the Highest Court in Australia has been made by the employer. It remains to be seen what their decision will be.
Facts

On 17 April 2010 the injured worker suffered an injury at work when a bundle of steel fell from a forklift causing him an injury on his left foot and left ankle.

Two days later the injured worker made a Workers Compensation Claim.

As is usually the case the original Workers Compensation Claim does not specifically make a claim for any permanent impairment.

The law requires that a worker “reach maximum medical improvement” before he can be assessed and make a claim for permanent impairment benefits.

On 19 June 2012, new provisions of the Workers Compensation Scheme came into force for all “claims for compensation” made on or after 19 June 2012.

The injured worker made a claim for permanent impairment benefits after this date.

In essence, the issue was whether the original Workers Compensation Claim was enough to see his claim fall under the Pre-Workers Compensation Amendments.
Decision of the President of the Worker’s Compensation Commission

President Keating of the Worker’s Compensation Commission dismissed the workers claim stating that “claim for compensation” meant that a claim specifically for permanent impairment benefits had to be made before 19 June 2012.

As the claim for permanent impairment was made by the worker after this date and under the 11 5 Whole Person Impairment Threshold he could recover no compensation for permanent impairment. The Worker Appealed to the New South Wales Court of Appeal.
The New South Wales Court of Appeal Decision

The New South Wales Court of Appeal allowed the Appeal.

The New South Wales Court of Appeal found that if any claim for Compensation is made before 19 June 2012 than the old provisions will apply to that claim (i.e there is no threshold for obtaining Whole Person Impairment benefits) and thus the worker can claim.

The Court noted that this was the case “whether the claim specifically sought compensation” for permanent impairment benefits.
Is this the final word?

The employers Solicitors are considering whether they should appeal to the highest Court in Australia that is the High Court of Australia.

The employer has until 27 May 2013 to lodge this Appeal.

If any Appeal is lodge, the High Court of Australia must grant special leave to hear the case of the employer.

If special leave is granted, than the High Court will review the case and provide a judgement which may overturn or confirm the New South Wales Court of Appeal.

It is yet to be seen whether the employer will appeal to the High Court of Australia.
The position of WorkCover

WIRO, a sub branch of WorkCover has issued the attached fact sheet which provides what an injured worker’s rights are if they have made a claim for compensation before 19 June 2012 with respect to permanent impairment.

This document states that WorkCover is of the view that an injured worker can make a claim for permanent impairment benefits.

If you reach the threshold of 11 % Whole Person Impairment than you are entitled to further compensation for pain and suffering.

If after making this claim your condition further deteriorates, an injured worker will be able to make a further claim for permanent benefits provided that the deterioration has caused an increase in assessment of permanent impairment.
Conclusion

If you have made a claim for compensation before 19 June 2012 and have any ongoing impairment we strongly suggest that you seek legal advice as to whether you have any entitlements to permanent impairment benefits.

It is still to be seen whether the New South Wales Government will seek to change the law so that the New South Wales Court of Appeal Decision is in fact changed.

If you do wish to proceed with a claim for permanent impairment benefits we ask that you kindly contact our office and arrange an appointment in this regard.

About Beilby Poulden Costello: BPC Lawyers offers legal services such as workers compensation, motor accident compensation and claims for public liability. BPC Lawyers has its origins in a legal practice started by Barry Beilby in 1975.

Worker Receives Compensation Prior to Stabilisation of All Injuries

Worker Receives Compensation Prior to Stabilisation of All Injuries

Scott Hall-Johnston, a partner at Beilby Poulden Costello, recently represented a woman who suffered an injury in the course of her work.

The Facts:

The plaintiff, in the course of her work, fell and suffered injury to both knees and her spine. A workers compensations claim was lodged and she was deemed to have permanent injury to her right knee and spine. The injury to her left knee, although considerable, had not stabilised and could not be assessed. The Workers Compensation Commission determined that because the injury to the left knee had not stabilised, it would be inappropriate to pay compensation until such time as it did.

The Judgment:

The NSW Court of Appeal found that there is no reason why a worker cannot be paid compensation in respect of injuries that have stabilised, and at a later time, be paid compensation for injuries which have not yet stabilised.

Effect of the Decision:

The decision has ensured that workers who suffer multiple injuries in the course of their work are entitled to claim compensation prior to the stabilisation of all injuries. This decision guarantees that workers don’t suffer an unfair delay in gaining compensation as a result of injuries suffered at work.

If you would like to discuss your rights, please contact one of the solicitors at Beilby Poulden Costello on 8280 6900.
Case Source: Worker Receives Compensation Prior to Stabilisation of All Injuries

About Beilby Poulden Costello: Beilby Poulden Costello offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.