Here is what I call my “Survival Guide” to workcover because injured workers who are placed on workers’ compensation without the benefit of experienced lawyers on their side are left to rely upon human resource managers, workers’ compensation insurance case managers and claims adjusters for advice and information regarding their workers’ compensation rights.
All too often, injured workers mistakenly believe that workers’ compensation insurance is their insurance. Nothing could be further from the truth! Rather, workers’ compensation insurance is insurance for the employer, and an injured worker is considered a “claimant.” In fact, Australian laws are written in such a way that the workers’ compensation system has become a system of the injured worker versus the insurance company (and the employer)!
The average injured worker placed on workers’ compensation has no understanding of the system and is left to trust the workers’ compensation insurance company (and their employer) to protect his/her rights. A workcovervictimsdiary believe that such trust is misplaced.
The Survival Guide to WorkCover has been prepared with the hope that it would help injured workers identify the red flags!
Survival Guide to workcover
1. Be sure your injury description is correct
When a worker is injured on the job, the law requires the workers’ compensation insurance companies to issue a Notice of Compensation Payable/ notice of injury/accepted liability, if liability is accepted for the injury,which represents the employer’s and insurer’s legal recognition of a work injury. It contains a description of the injury and sets forth the employee’s average weekly wage. The Notice of Compensation is prepared by the workers’ compensation insurance company, and often the description of the employee’s injury is not accurate. It is very common for the insurance company to describe the injury as less severe than it really is. For example, an employee might injure his/her wrist on the job and go to the hospital’s emergency room for treatment. X-rays reveal that the wrist is fractured, but when the injured worker receives the Notice, the injury is described as a wrist sprain. Many employees do not even look at the injury description when they receive the document. However, an inaccurate injury description almost always favours the insurance company and hurts the injured worker. The Notice should have an accurate injury description. If the nature of the injury has changed, for instance, if a low back sprain is later determined to be a herniated lumbar disc after an MRI, the Notice should be changed to reflect the diagnosis of the more serious condition.
In my case, 7 years after the incident and 7 major surgeries later, the Insurance Company I deal with still writes “bruised [limb]! That the [limb] is fractured and broken beyond repair, qualifies as a ‘serious injury’, and even whilst the insurance company issued me (later) with a notice of assessment (for impairment) of 26%, they continue to just write that I have a “bruised [limb]. Even when they send me to an IME or a Medical Panel, their diagnosis of just a “bruised [limb]” remains unchanged…. yeah, right…
2. Be sure your wage rate is accurate
The Notice of Compensation Payable referred to in Survival Tip #1 also includes the injured worker’s pre-injury average weekly earnings (PIAWE). The workers’ compensation insurance company calculates the average weekly wage by using one of several possible formulas, which are selected depending on the injured worker’s individual circumstances. The average weekly wage should include salary and/or hourly wages, overtime, and bonuses. It may be adjusted for seasonal employment and should include income from other employment.
Mistakes in calculating the average weekly wage are often made.
Failure to review the calculations may result in an underpayment to an injured worker that goes undiscovered.
3. Always document receipt of late payments (whether in your bank account or via cheque)
Late payments are a common complaint of workers receiving workers’ compensation benefits.
The law requires workers’ compensation insurance companies issue wage loss benefit cheques/payments in the same pay period that the injured worker would have received his/her regular pay. For example, if you were paid weekly before the injury, you should receive your workers’ compensation payment weekly.
- Make a copy of the cheque/payment when it is received.
- If you receive cheques, attach the copy of the cheque and any cheque stub that accompanied the cheque to the envelope in which the check came.
- Write the date that you received the cheque on the envelope or copy your bank statement(s)
Your lawyer can then use this documentary evidence to prove that the workers’ compensation insurance company is not sending the cheques/payments in a timely or consistent manner.
After all the years that I have been receiving workcover payments (initially on and off as I was still working in between surgeries until about 2 years ago,when I had to stop working), it still surprises me how often my employer/workcover “forgets” to pay me, and what amazes me most is that payment amounts will occasionally vary!!!!
4.Know the significance of an independent medical examination (IME)
An Independent Medical Examination (IME) is a tool used by the workers’ compensation insurance company to have its own “so called independent doctor” of choice review the physical condition of an injured worker. The Independent Medical Examiner, a doctor chosen and paid by the workers’ compensation insurance company, will review an injured worker’s medical records and examine the injured worker. The IME doctor will then issue a written report to the workers’ compensation insurance company. A copy of that written report is usually not provided to the injured worker, but you are entitled to a copy under the ACA or the Freedom of Information Act (make sure you obtain a copy).
An IME costs the workers’ compensation insurance company money. Therefore, it is usually only requested when the insurance company feels it may disagree with the injured worker’s treating doctor, and wants to interfere with that treatment or refuse to pay for it. The other reason that an insurance company will request an IME is that it disagrees with the treating doctor’s restrictions on the injured worker. In those instances, the workcover insurance company requests an IME to force an injured worker to do more work than is recommended by his/her treating physician. In either event, AN IME ALWAYS SPELLS TROUBLE!
5. Know who’s side workcover, including your case manager is on
Injured workers have the right to choose their own doctors and specialists.
Workers’ compensation law provides the injured worker with the right to control his or her own medical treatment.
Workcover insurance companies must also provide you with a list of at least three (3) Occupational Rehabilitation Service providers. Don’t just accept who they are sending you to!
6. The workers’ compensation insurance company is required to reimburse the injured worker for travel expenses.
- Kilometers (petrol) if you use your own car
- Parking fees (keep receipts or take a picture of the digital parking meter if no receipts are given)
- Travel costs to any treatment/appointment needed for your injury: this can be physio, psychology, GP, specialist, massage etc
- Medical Panel
- Accident Compensation Conciliation Service (ACCS) travel cost must also be paid
7. Be careful of Vocational Assessment and the identification of “suitable” jobs
A vocational expert hired by the insurance company compiles a Labour Market Report with “identified suitable jobs”, and the insurance company’s lawyers may introduce that report at a hearing before a workers’ compensation judge and request that an injured worker’s weekly wage loss benefits be reduced or stopped altogether.
They will go out of their way to find you the most outrageous ‘suitable’ or ‘light duties’, often without consulting you or taking your restrictions into account.
I had been employed for almost 10 years with the same employer where I sustained my severe injury. My original employment was terminated within weeks of my injury as medical reports proved that I would never be able to work in that “field” again. Suitable duties were allocated – hey your employer has a duty to care for you for 52 weeks (1 year) and cannot sack you during that period. The so called suitable duties were physically worse/harder than my original job! So I looked for another job within the organisation by myself, which was more sedentary and desk-based.(BTW I retrained as well via internal courses and 1 TAFE course). I obtained in total 3 independent contracts (jobs) during a period of 5 years AFTER the accident and AFTER my original employment had been terminated. I was working as a X Manager in my last full-time job and had independently obtained this position by legal means (interview, selection process etc). I had made it very clear at the time of my interview that I was ‘disabled’ and that I required reasonable ergonomic tools in the workplace as well as some flexibility (good days/very bad days). All was accepted and I was still deemed the best candidate for the job. About 6 months down the track it became unfortunately clear that I would require further major surgery. The injury had again deteriorated, again because my employer had still not put in place the medically requested, reasonable ergonomic tools to assist me (we’re talking about simple things such as chair with support, docking station for the laptop, alternative mouse, under-desk keyboard drawer etc). My employer was well aware of the type of surgery I was to undergo and knew that I would most likely lose more function (in my limb) in exchange for pain control. It was a salvage operation. They also knew that the ergonomic tools would still be necessary, even more so. Guess what, after the last surgery, and whilst I obtained a legal certificate of capacity from my surgeon allowing me to undertake the same duties as before the surgery 6 weeks after the surgery, my employer sacked me – just like that. It was obviously fine for me to work full time up to the day before the last surgery in a very bad physical state and with no ergonomic support, but after the surgery I was ‘not good enough’ anymore I suppose.
Within DAYS of my sacking, my case manager started calling me (up to 10 times a day) stating that I could and would work and that she would send me to a vocational. Needless to say that I questioned the need for a Vocational assessment, given that I had been working as very successful X manager for several years. So why the need to find a new vocation?
Anyway, it turns out that, setting aside their desperation to get me a job (of which by the way several positions were open in the same field), they were looking at making me work in “identified labour market jobs”. I will spare you the details but whilst I have been working my whole life in health care, they felt that I could work as a “ministerial assistant” and – take a deep breath- that “I had experience in that area: as in preparing briefing documents for a minister” – yeah, right… Another job that I was deemed capable of was to work as a X clerk! I mean I get sacked from an executive management position in the health care system (for which I am well qualified), and which involved desk work (report writing, analysis, coaching and training, project work etc), but now I need to work as a X clerk,which involves running around all day, photocopying documents, filling water jugs, making coffee, answering calls… yeah right… Not only is this clerk job so insulting, but – the important part- the job is hands-on and here I am sacked by my own employer because “I am disabled” and “can’t do a desk job”. Please explain!!!!
8. Make sure your medical (and related) bills are paid and on time
If you are already receiving workers’ compensation benefits, you should be aware of the fact that your medical treatment can be subject to an ‘Victoria/whatever state WorkCover Autority Clinical panel review’. This is a process in which the insurance company challenges whether your medical treatment is reasonable and necessary, not whether the treatment is related to the injury. Once the workcover insurance company receives the medical provider’s bills/accounts and notes, it can file for this Clinical Panel review, which allows the insurance company to avoid paying for the treatment. When the insurance company does this, supposedly, a medical provider with the same specialty as your medical provider reviews the treatment.
You should know that you cannot be held responsible for paying the medical bill and you can take an appeal of that panel review’s decision. In fact, this clinical panel review is not only available to the insurance company—you, too, can file for a review if necessary. If you receive a Clinical Panel Review Determination or think the insurance company is refusing to pay for treatment recommended by your doctor, call your lawyer or the ACCS to find out your rights.
Usually you can appeal the decision at the ACCS, and just provide your own “evidence” from your supporting treaters that you do need the treatment.
In my case workcover has attempted to cease my psychology treatments several times and recently also decided that I did not need physiotherapy. Between brackets I am to undergo an 8th major operation to a joint (limb), but hey I don’t need physiotherapy for that, do I? Get a grip!
Often a WorkCover insurance company will not pay for a medical bill because it believes the treatment is not related to the work injury. You should not let these bills sit around even though you know they are related to the work injury. By not dealing with the issue, the bill could be reported to a collection agency and the doctor could even refuse to treat you.
For example: I was recently told by a fellow workcover victim that workcover refuses to pay for Eye drops and Eye ointment. These eye treatments were prescribed by the injured person’s specialist to alleviate eye issues (dry eyes etc) that came about as a known side effect from an anti-depressant the person needs to take.
In another case, workcover refused to pay for an ultrasound of an injured person’s leg stating that “the leg injury had nothing to do with the original shoulder injury”. Well, that person had undergone massive surgery whereby the hamstrings of the injured person’s leg were harvested and transplanted into the person’s shoulder for reconstruction. jeezus, aleluja….
9. Prepare for your Impairment Rating Assessment
Impairment Rating Assessments are a tool used by the workers’ compensation insurance company to assess your total body impairment and subsequent lump sum payout. So it is about how much the workers’ compensation insurance company will have to pay to the injured worker. The workers’ compensation insurance company gets to start the Impairment Rating process and controls the records which are reviewed by their chosen physician.
Needless to say that the “independent impairment assessors/doctors” are not only chosen by workcover, but they also happen to be paid for by workcover. Workcover insurance companies will go at great length to have your impairment assessed by the most dishonest, incompetent “assessor(s)” – remember its about MONEY.
In my case workcover sent me to an “occupational physician” to assess a highly complex orthopedic injury. Not only was he rude, but he was very good a covering up certain injuries or the severity of injuries. What does an occupational physician know about RSD or CRPS for example, what does he know about an 7 times operated upon joint?
The law also provides a way to challenge an Impairment Rating Assessment. Usually the way to appeal an impairment assessment is via the Medical Panel. You should contact your lawyer.
10. Offers of settlement for a lumpsum
Needless to say, there is typically a very large difference of opinion as to what a workers’ compensation insurance company wants to pay and what an injured worker should accept. The amount offered relates to the total body impairment as assessed by their doctor of choice. It is important to remember that the workers’ compensation insurance company cannot make an injured worker accept a settlement. (see above) Many times, a settlement, even when it provides for a large payment, is not in the injured worker’s favour. Don’t get fooled by the little bold clause stating “that if you accept the offer the money will be in your account within 14 days”, no matter how poor you are.