The current workcover system for impairment rating is not fair at all

The current workcover system for impairment rating is not fair at all. If you have read the previous post about “claiming compensation for pain and suffering” you may well have realised that our current workcover legal system is not set up as fairly as you first thought!
It is only when you or someone close to you is a victim of a workplace accident that you actually discover the VIC (and most other state) Government is denying you of a lumpsum and of the common law right of access to justice for any pain and suffering endured.

The current workcover system for impairment rating is not fair at all

The current VIC  Government’s  workers compensation  insurance law basically means that:

  • Before you, an injured worker,  can obtain a lumpsum for your permanent injury, you -the victim- would have to meet a 10 percent ‘whole person impairment’ (WPI) threshold, calculated in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition (AMA Guides) or (after 2003) a 5% WPI for upper limb, lower leg or spine injury;
  • For psychological injuries, a whopping 30 percent threshold  applies, and those injuries need to be primary psychiatric injuries (secondary psychiatric injuries don’t count)
  • And in order to be able to claim damages for pain and suffering and economic loss, you would need a whopping 30% WPI to be deemed a serious injured worker, and you would also need to prove that there was negligence involved.
  • Cases are usually assessed by the  medical panel,because most often the so called independent medical impairment assessment organised and paid for by the workcover insurance is extremely unfair and ,indeed more often than not, needs to be appealed at the medical panel.

Even for  the few cases that would make the necessary  grade, the workcover injury victims would find the lumpsum payout amounts extremely small,  and the caps on pain and suffering often unfair.

At first glance one would think that we have a what appears to be a reasonable, standard “guide” in place (The AMA guide 4th Edition) to assess the level of permanent impairment for each injured person…

WRONG!

… you will soon realise (if you dig a little further) that the use of the AMA guide (4th Edition) is based on pseudo science and designed to do only one thing: to stop people — especially the most vulnerable  — from being fairly compensated.

Did you know that the AMA Guides 4th Edition were published in 1993,they are just about 20 years old!

Did you know that the AMA Guides state up front that:

  • They do not — NOT — purport to be “scientifically valid and reliable
  • Impairment ratings in the guides are “merely ‘estimates’ of impairment” based on “consensus” not “scientific evidence”
  • Do not apply to “every type of impairment”
  • That “certain conditions (such as psychiatric reaction to pain) are not explicitly ratable under the Guides”
  • Should “not be used for direct financial awards nor as the sole measure of disability; and
  • Are based “not on science but on ‘legal fiction’, ‘consensus,’ and other unsupported assertions”

Yet, the VIC Government  uses these American Guides, what US Courts have determined as, “arbitrary” percentages to a victim’s injuries.

Does that sound like a system for fair compensation to you?

Here are a few real examples of injured workers and denied “lumpsum compensation” entitlements

Injuries denied justice

Under the current workers compensation system the kinds of injuries that would be denied compensation include:

  • vertebral fractures resulting in up to 25% compression with ongoing pain : 5-8% total body impairment rating!
  • spinal fusion requiring multiple surgeries with ongoing pain : up to 14%
  • surgically treated disc lesion with ongoing pain: 10%
  • pelvic fractures with displacement deformity: 2-10%
  • disorders restricting ability to walk up mild gradients and stairs, sit down in deep-chairs, rise to a standing position or walk long distances 1-9%
  • brief repetitive or persistent alteration of state of consciousness or awareness 0%-14%

Think about it: if you are, say, an office worker and suffered a bad back injury (because you slipped and fell at work, and it was your employers fault because the cleaner left the floor wet and forgot to leave a “wet floor sign”), you ended up with a spinal (back) fusion and have ongoing severe pain for which you take a lot of pain killers, you were previously a very good horse rider and now you can’t ride anymore and had to sell your horse. You were told that you will get arthritis in your back and may need further surgery over the years/lifetime. You need to ‘sit” on a special chair at work and the pain is killing you, every 20 minutes you need a break… and are now working barely 20 hours a week.You have become very depressed and need anti-depressants and counselling. Still, you are not entitled to sue for compensation for pain and suffering or for economic loss. You are likely to get about 14-16% impairment -if you are lucky- and that will give you a lumpum of about $15 to 27.000, that’s it for the rest of your life.

Does that sound fair to you?

 



As of 14 Oct 2014, this post has been viewed 97 times.

10 Responses to “The current workcover system for impairment rating is not fair at all”

  1. I fell off a ladder and broke my back in 2 places. I had 3 major surgeries (fusions). One of the surgeries went wrong and the screw was put in crooked and pinches a big nerve that goes down my leg to my toe. I am in severe pain and take a lot of heavy duty pain killers. I am unable to work (I used to do construction work and painting). I feel very depressed and just went through a divorce. I was assessed by the panel 1 year ago and got 8%. I got something like 7000 dollars. Nothing else. I can’t even work for the rest of my life anymore! I get 320 dollars a week from workcover and pay child support (3 kids under 15 years). I was refused home help. I am destitute and feel like ending it.

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    • Hello “hurt”, I don’t know what to say but that I feel for you and that I wish I could take all your pain away and make things right for you. It enrages me that our legal system is set up the way it is and that seriously injured people, like yourself, are not receiving their due compensation for their pain and suffering and economic loss. And although money won’t take your pain away, it surely would lift an enormous weight off your shoulders, and allow you to live in more “comfort”, with home help and the care you need….Hang in there, mate, you’re not alone, we’re all going through similar shit xxx

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    • The terrible thing about workers like “hurt” is that even if his condition now seriously deteriorates he is not entitled under the very unfair retrospective laws to ever come back for increased impairment compensation.

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  2. dear hurt,

    i’m so sad reading your email. you should copy and paste your message to our minister right here and now: http://www.rich-phillips.com.au/Contact.asp

    i hate to think how many injured australians get to this point. is there no liability from your surgeon/hospital?

    thinking of you, very sad.

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  3. Makes you think about that suing for personal injury (strict negligence) and stuff workers comp. I have a real concern about the role of doctors in this. How can they assess poor ‘Hurt’ at 8%? That is so unethical. Can we report these hacks to the AMA? It seems to me that the failed doctors who work for the insurance companies have no accountability at all, they even go against their own hypocratic oath and denigrate real doctors. Surely the professional organisation which represents all doctors should investigate their own if they breach ethics.

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  4. I was injured in 2008 in my workplace with a neck injury (muscle & tendons),  my injury has not required surgery.  I was originally deemed less than 5% but then faced the nightmare of the medical panel which deemed me 5%.  I received a small impairment claim.  My ongoing pain (chronic pain syndrome) leaves me unable to lift anything over 10kg, but some days i struggle to lift a 3 litre milk.  I have pain into my arms and hands which makes life difficult especially when I can’t open the lid of a jar or struggle to drive.  It was recommended by the so called retun to work that I could do retail assistant, retail management or receptionist work.  I was working retail when the injury occured. I have limitation on lifting, limitation on anything repetitve, suffer from constant headaches can’t sit for long periods and can only manage 20 hours of work per week compared to originally work 40 hours pus per week  I have depression and feel quite worthless as I am unable to find employement elsewhere.  On top of this due to the stress I am now left with a bowel condition which looks like I will have to have part of my bowel removed.  I am currently waiting for employement benefits, just another nightmare.  The whole system is unfair as does not take into considertion the ongoing effects.  How can it be said that my injury has in no way affected my standard and quality of living.  The system sucks and every individual needs to be considered as an individual.

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  5. Hi I understand were you all coming from I was injured at work my right leg which left me with cprs and this condition has caused my life to change I got terminated 12 months after
    My injury can’t get any help from work cover insurance from employer
    Can do any thing I use to have post traumatic stress and depression am about go through the work cover impairment shit and am scared
    Cprs is incurable and by reading all of this I am at a loss I want to fight them but looks like
    It is all in favour of the employer it sucks I lost house my job and my usual lifestyle to be told from what I read that we Aussies are worth nothing just a number and can be replaced

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    • @Kat – So sorry to read about your living nightmare, being afflicted by the crippling condition CRPS is indeed no joke and when on top of that you lose your workcover claim, weekly payments, your job, joy of life, it is truly a very painful nightmare. I am not sure where you’re located or who is treating your condition, but CPRS is really treatable and can even be cured into partial or full remissions. Some of us, authors behind this site, suffer from CRPS and have had remissions, even surgery (which many believe is contra-indicated), with success. Treatment techniques involved combination of medication (nerve pain medication, anti-depressants, narcotic) and nerve blocks, supplements (incl Vit C) and Ketamine infusions.

      There is a very good website re CRPS: see http://www.rsds.org/2/what_is_rsd_crps/index.html

      Unfortunately the very bad news is that in most states under the workcover legislation, using the AMA guide 4th edition for the purpose of assessment of permanent impairment (i.e Vic) PAIN does not rate. In fact the pain chapter was entirely removed in Victoria. Which means that one can get a only very little % impairment rating for this condition (about 2% if your suffer from CRPS type II). See: WorkCover state the AMA guide does not recognise chronic pain

      This is a most UNFAIR system indeed, aimed at doing one thing – NOT providing compensation to the majority of injured workers.

      Saying that, you still ought to fight for your legitimate rights, such as weekly pay and payment of all your medical treatment under workcover – if your CRPS is a direct result from your work injury. Seek legal representation.

      We recently published a legal case involving an injured worker who suffers from CRPS and who had his weekly payments cut off based on “surveillance”, only to win in court.

      Hang in there!

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      workcovervictim3 May 29, 2013 at 6:16 pm
  6. Have been reading here and not surprised of the way ones are treated.The way I am told certain officials in government have got together and came up with an impairment system so it is difficult for many to claim pain and suffering.we pay the insurance and we pay it for when things happen so we pay the money why do they offer us bad service. The system stinks and I have to face the insurer next month and workcover,.they disregard medical evidence you give and anything else well I will fight sscrew them.

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    Gary Rodighiero July 13, 2014 at 4:54 pm
  7. Hi just reading all of the sad & unfair stories makes me feel not so alone in this crazy world of “work injuries”.
    I hurt my neck at work and ended up having a “neck fusion & discetomy with a kage” last yr in June 2013. Prior to surgery I went through yrs of hell just like you guys…chronic pain lived on pain killers no sleep depressed etc. I had to sell my home as workers compensation payments were too low to cover all of my bills. It effected my relationship & my sex life!
    I have worked for the same company for 19 yrs & still work there….only I had to reduce my hours to part time as my neck got too sore working full time. You soon find out that your just a number when you injured at work, they do their best to show you the door or push you through it!
    Not sure what my future holds atm have seen a solicitor but I don’t hold much hope with compensation for future pain etc.
    I’m a lucky one though as the operation did help and I’m no longer in chronic pain! :) but saying that I do have pain still and some days cannot even move my neck at all.
    Thinking of you all xxxooo
    Kat75

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