Yesterday aworkcovervictimsdiary.com received a share-your story from a very brave and courageous, but frustrated injured worker wishing to share his experience with our sick workers compensation system. As is often the case, his employer (Railcorps) gets off Scot free for causing him a permanent injury, the lawyers get their money, and the injured, suffering worker finds himself unemployed and has an extreme pay cut! Again, this story shows that many injured workers are basically punished for having been unfortunate enough to have been injured at work…
Employer gets off Scot free for causing worker a permanent injury-a story
Imagine living the life of an injured worker for a day. Pretend for a moment you have a very painful back injury, a terrible shoulder injury, atrocious nerve pain, or -such is the case here -a serious painful foot injury…
Your first challenge is getting enough rest. But a peaceful night’s sleep no longer exists in your life. Your sleep is continually interrupted due to pain. Sleeping for three to four hours at a time is a dream!
Then, the alarm clock blares, and it is time to begin your day. Everything you do seems to make your pain worse but you keep moving, you have to. You manage to get yourself ready for the day. Your family has to fend for themselves because the most you can do is take care of yourself at the moment. Your top priority is taking medication in hopes that the edge will be taken off the pain. Then your day can really begin… chasing the status of your claim.
The frustration and emotions, and the sleep deprivation you are experiencing seem to make the pain worse. You don’t understand why you keep on having to go to independent medical doctors who are not even trained nor qualified in the field of your particular injury. The on-going paperwork from the workers’ compensation insurance company is very confusing and endless. Every time you call for clarification you either receive a voicemail or you just get yelled at by yet another case manager who doesn’t quite seem to know what the problem is.
You have called your ever changing case manager for three weeks and still have not spoken to a real or a decent person yet. You wonder about retaining a lawyer but everyone you share your story with tells you it’s too soon. And, it seems, everyone has a workers’ compensation horror story to tell.
Your head is spinning from information overload and all you really know is that you hurt and want it fixed.
This just can’t possibly be how your life ends up after all the years of hard work you have contributed. Who can you turn to that can actually help you through this process, help you get proper medical care, figure out return to work options and help you get your life back?
Welcome to D’s nightmare!
Injured worker’s story
I [the injured worker] started working as a security dog handler in [month] 2011. My duties were to constantly patrol a Railcorp NSW railway siding for 12 hours 7pm to 7am, with a 20 minute and 10 minute break. I was working up to 75 hours a week.
After several months I began to experience severe pains in my feet and ankles. I thought it was just sore feet. I made a Workcover complaint when I was threatened with loss of job for reporting I had microslept and almost been hit by a train.
Workcover investigated and issued an improvement notice but only for fatigue. I was still required to walk constantly for 12 hours a day.
Two months after the improvement notice I had to go home as the pain was too much. After a protracted fight with workcover (cut my payments for hiring a solicitor, stalled on approving my scans for 10 weeks) I finally got my scans.
I have been told that there are no jobs available at my current job, my payments reduced from 1750-1100 per week working to $600 on compensation, I have less then 10% impairment and even though its very painful for me to walk I am expected to be job seeking.
Thank you for having the courage to share your story!
And this is one terrible of thousands of similar stories! And this is how our workcover system really works indeed. At the end of the day, most medium to serious injured workers will end up with NOTHING and with their lives virtually destroyed…
We believe that Railcorps (employer) falls under Comcare. Perhaps you could let us know with which workcover insurance you are dealing with (i.e. Xchanging, Allianz, Gallagher Basett, CGU etc).
Note re Comcare:
Anyone employed by the Commonwealth of Australia or by one of its prescribed authorities (e.g. Telstra, banks, etc,) has similar rights to compensation (e.g. weekly payments, medical and other similar expenses, rehabilitation, household and attendant care services, death benefits, common law damages and lump sums for permanent impairment and associated non-economic loss) under the Safety, Rehabilitation and Compensation Act 1988 (Cth). This Act is similar to the Victorian 1985 Act, but there are a number of procedural differences. In all cases, under the Commonwealth Act, the employee must complete and lodge with the employer a claim form. The claim is then investigated by Comcare or, if the employer is a licensed authority (e.g. Telstra), by the licensed authority.
After considering the claim, Comcare or the licensed authority makes a determination either accepting or denying liability for the claim. If the claim is accepted, the quantum of the claim is also determined. A determination may also be made in such cases as the termination of weekly payments and rejection of a lump sum or death benefit claim.
An employee dissatisfied with any determination should request a reconsideration of the determination by Comcare or the licensed authority and if, on reconsideration, the reviewable decision affirms the determination, file an Application for Review with the Commonwealth Administrative Appeals Tribunal.
If a worker is dissatisfied with a determination, proper legal or trade union advice should be sought.
See online law handbook (Vic) here [there must be the NSW and other state's equivalents]
We strongly recommend that D seeks immediate reputable legal representation!(i.e. Shine Lawyers listed in the right had side bar). Refer to our “claims process” guide for a basic overview of the workcover claim process (in Vic, but most applies in all states).
With regards to suitable duties, note that in Victoria (and we believe in most states) your employer has a duty to look after you for a period of 12 months following the injury, and has to provide you with suitable work (if you have a work capacity with restrictions). If they don’t have suitable duties, then the insurer is responsible to find you an alternative job via rehab services (vocational, New Employer Services -NES- etc).
There seems to be something very “fishy” about the “permanent assessment” D was given – PRIOR to having undergone his scans! A permanent impairment assessment can only be undertaken once an injury (injuries) have stabilised and are deemed “stable”.
The legislation defines that ‘an impairment should not be considered “permanent” until the clinical findings, determined during a period of months, indicates that the medical condition is static and well stabilised.’
This means exactly that and many injured workers have to wait months or years before their injuries can be considered stable. You have to ensure that you will not suffer additional injuries, complications (i.e. from surgery) and/or develop for example secondary psychological injuries such as depression! Many lawyers advise their clients (injured workers) to wait and even delay before submitting to a permanent impairment assessment!
Once you have been assessed by an -ahum- “independent” workcover doctor and given a notice of permanent impairment, you can appeal the (often biased assessment) at a Medical Panel! In many cases, you will be surprised at the amount of impairment percentage difference between an “independent” medical examiner and the Medical Panel (we know of a case that went from 19% to >30% overnight!).
Workcover’s impairment rating (assessment) is based on history, a 20 year old pseudo-scrientific “guide”, of which the first page states “do not use for impairment assessments”. These AMA guides have been BANNED in civilized countries such as in Europe and in America.
The use of the AMA guide (4th Edition used in Vic) is based on pseudo science and designed to do only one thing: to stop people — especially the most vulnerable — from being fairly compensated.
In addition to that each state has their own “threshold” (impairment percentage) which allows or does not allow injured workers to pursue common law damages for pain and suffering and/or economic loss (if eligible, that is if you can also prove negligence on the part of the employer).
For example, in Victoria you have to have a whopping 30% total body permanent impairment to be eligible for a common law damages claim. We believe it is currently 15% in NSW.
Under Comcare (we believe Railcorps is under Comcare), things appear even worse. Injured workers who are covered by the Comcare scheme are, like WorkCover workers, entitled to a lump sum payment as long as their injury has resulted in permanent impairment of 10% or more. This is the 10% impairment threshold. (In Victoria, the impairment threshold for injured workers under WorkCover/WorkSafe Vic is 10% but 5% for certain injuries).
This basically means that an injured worker who has been assessed as having a total body impairment rating of 10% would be entitled to a meager little lump sum of between $25 and $35,000. If you have less than 10% you get nothing and, believe us, the system has been set up in such a way that it is very hard to reach the [10%] threshold under Comcare (and other schemes) This is a one-off payment for the injured worker’s rest of his/her life! However, the Howard Government – in 2006 – made Comcare shift the impairment threshold by stealth as it were – the new guidelines were introduced which now included tables under which doctors (impairment assessors) were in fact prevented from assessing injured workers with a permanent impairment between 8% and 13% – how fully SICK!
What this really means is that the Government made it look that the legislation makes an employer (Comcare) pay a meager lump sum to any worker who has sustained a permanent impairment of 10%, but in reality the new Comcare guidelines really prevent doctors from making an assessment at that level. (read article).
Perhaps anyone of you, readers and contributors, can help us support D by, for example, providing links to the NSW workers compensation Act, other relevant resource?
So, when Barry O’Farrel starts talking about “slashing” injured workers’ benefits, he talks about taking that tiny little-bit- what’s-left away, which will -undoubtedly- push many injured victims over the edge!In what bloody world do we live in?