NSW injured workers can still make a further claim for impairment for that same injury – new legal case

di-matteo-case-nsw

More good news for NSW injured workers! In this recent (20 May 2013) legal NSW case, the Workers Compensation Commission’s verdict in the case of Di Matteo v RDM Ceramics Pty Limited essentially means that if an injured worker has made ANY type of claim before to 19/6/12 then he/she can still make a further claim for permanent impairment for that same injury.

Needless to say that Workcover insurers should brace themselves for an influx of claims for further impairment particularly as injured workers will try to reach the 15% whole person impairment threshold to be able to bring a claim for work injury damages.

NSW injured workers can still make a further claim for impairment for that same injury – new legal case

The Case and the Issues

The questions of law referred to the NSW Workers Compensation Commission for determination in this case were in essence the following:

  1. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 disallow a worker who has made a claim for permanent impairment compensation prior to 19 June 2012 from making a further claim, in respect of the same injury for permanent impairment on or after 19 June 2012? And
  2. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment where the injury occurred before 1 January 2002?

The Workers Compensation Commission’s Decision

President Keating of the Workers Compensation Commission handed down his much anticipated decision in this matter the day before yesterday (22May 2013) and his decision did not come as a surprise given the Court of Appeal’s recent, amazing decision in the landmark case of Goudappel, in which the Court has held that the amendments affecting lump sum compensation that came into effect on 19 June 2012 do not apply to any worker who had made a lump sum claim before 19 June 2012

President Keating’s answer in relation to question 1 was “no” following the Court of Appeal’s decision in the matter of Goudappel. He said that question 2 did not need to be answered given his decision on question 1.

What does this important decision really mean for injured workers in NSW?

This very important decision basically means that if an injured worker has made ANY type of claim prior to 19/6/12 then he/she can still make a further claim for permanent impairment for that same injury.

Needless to say that NSW workcover insurers should brace themselves for an influx of claims for further impairment particularly as injured workers will undoubtedly try to reach the (increased) 15% whole person impairment threshold to be able to bring a claim for work injury damages.

Of course, you will see from this decision that Workcover strongly indicated it did not agree with the Court of Appeal’s decision in Goudappel and therefore it was not prepared to concede the legislative amendments and Transitional Regulations were invalid or beyond power. It remains to be seen if leave is sought to appeal the Goudappel decision to the High Court. However, we strongly doubt they will succeed at overturning these landmark decisions, given the widespread outrage of injured workers and their supporters at the draconian and most unfair reforms, and the widespread unpopularity of the new reforms in general. The negative repercussions those reforms have on injured workers, the community and the tax payers is -slowly but surely- coming to full light!

Anyhow we are thrilled bringing you the great news about this case – may countless NSW injured workers (and their lawyers) follow in the footsteps of Goudapel and Di Matteo, clog up the courts and WIN!

You can read the full text of the legal case here (PDF) –  Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27

 

tipNote: updates on the Goudappel case can be found under the “goudappel” search tag

 

 

[post dictated by workcovervictim and manually transcribed on behalf of workcovervictim]

 



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22 Responses to “NSW injured workers can still make a further claim for impairment for that same injury – new legal case”

  1. I could be wrong but it sounds more like President Keating is sticking to his guns and ruling like he did in the Goudapel case which was subsequently overturned in the high court.

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    John McPhilbin May 22, 2013 at 7:27 pm
    • This could be so that the High Court then makes further rulings which in turn are concrete and far more difficult to overturn.

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      • These rulings and legal speak can be confusing – it does appear to be a reinforcement of the Goudappel decision.   Keating it seems rules in alignment with the High Court ruling, I think?  Anyway, the Law Society will be having a pow wow about the implication of the Goudappel case.  More clarity on the way.  On thing I do know is that solicitors are wasting no time in lodging lump sum claims – to offset the losses of weeklies and medical expenses.  Talk about the O’Farrell Government creating a lump sum culture – they didn’t see that coming.

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        John McPhilbin May 24, 2013 at 10:13 pm
  2. Excellent more and more cracks are appearing in O’Farrell’s workers compensation laws.

     

     

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  3. Have any of you heard of the WorkCover  “Scheme Critical” list? google Justice Tim Stanley, who was  the expert . It is a list of injured workers provided to Judges not to rule in favour of these injured workers, as they will cost the state too much money, in the mean time Craigie boy Thompson spent out money on HOOKERS, unreal. Report your case managers to the corruption Branch of the South Australian Police, make FOI requests to access your action sheets. Be aware of exempt documents with clause 10, which is legal privilege, speak to local members of Parliament . in Morgan v Workcover I am suing Workcover for breach of confidentiality. Also Workcover makes Foi applications to access your police records which is provided to them without your written consent, go to your union, give them what they give you. Alan Colton a lawyer who lost his lawyers license is now an advocate for refugees working with his daughter, who has now become a lawyer. I believe he ripped off injured Workers.

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    • Angela,

      Can I give you a bit of sisterly advice – you really need to stop what you are doing. If you continue as you have been for near on 2 decades now you run the real risk of the South Australian State Government having you declared a Vexatious Litigant.

      You have also already had one court judgement against you for defamation; don’t make it another one.

      All this achieves nothing. You really need to seek some professional help. The life of a vexatious litigant is not a happy one.

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      • Madame Zena, why do you patronize Angela? She has the right to speak her mind. The last time I checked Australia was still a democracy.

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        • I don’t really think that Madame Zena’s intention is/was to patronise Angela, on the contrary and I do believe she has mad a good point, perhaps one more in general, which I believed was worth digging into a little further: hence it prompted WCV to write the article “Vexatious “injured” worker blocked by the courts – again” (deleted). Not to mean that anyone here is being “vexatious”, rather to explain that being abused and ill treated by workcover et.al, former employer(s), IMEs and what-not we (injured sods) fully understand that this can easily lead to a sense of complete and utter rage, injustice, bitterness and a sense of total victimisation, and that many of us (certainly initially) feel the urge for (extreme) revenge for all the pain (whether physical and /or psychological)  that has been inflicted upon us.  While justice should always be pursued within our rights, we really believe that no-one should remain bitter, angry or vengeful. It leads to nothing and nowhere and will ultimately make you sick.

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          workcovervictim3 May 23, 2013 at 12:21 pm
          • Angela has the right to remain angry.  Why should she turn the other cheek?

            Insurance companies are getting more and more arrogant and abusive, thanks to the Government which allows and condones the abuse of injured workers.

            In NSW our taxes are going to Workcover and the insurance companies  thanks to the new legislation introduced by O”farrell and backed by the insurance companies all the way, and I have not heard a single politician being outraged by that.

            I don’t agree with your advice to Angela that she should let it go.

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            • Carol

              i strongly stand by what you just said. Angela has the right to be angry as it appears she has been hugely affected by parts (certain departments) of the State Government of South Australia.

               

              Having said this “NOT ALL” anger can be bad. fighting for what is right can be good for the injured persons psychological/mental health. being angry can and has on many counts kept people “ALIVE”.

              it is wise for all to check and make sure you weigh out chances of success / chances of failure in pursuit of any litigation action. if this is not considered it may have a negative affect on the pursuant (injured worker).

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              HuntingWorkcover May 23, 2013 at 2:10 pm
            • have a look at what this poor man went through,

              http://www.todaytonightadelaide.com.au/?page=Story&StoryID=584

              I like many feel that the system will go to the extreme to deny and blame the victim

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          • The case and article mentioned above”Vexatious “injured” worker blocked by the courts – again” has been deleted today, following numerous unpleasant emails from the “litigant”, incl that we are “simply a stooge for an insurance company or for workcover.” Ouch!! However you can read the case on the Austlii database.

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    • I checked out “Scheme Critical” on this link:-

      http://www.bressington.net/sub/Policies/WorkCover.htm

      It sounds to me as a reasonable explanation for what happened in my own case. “Scheme Critical” is undemocratic unjust and more legal bullying. Workcover is acting to corrupt and use  greater legal power to abuse vulnerable Injured Workers.

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      • Hi Pauline I too had a closer look at the “Scheme Critical” also know as the “Hit List” I found it quite disturbing as it claims the legal system is corrupted due to $$$$$$ at the cost of injured workers health, lives & families.

        I also stumbled across an old forum which discusses scheme critical.

        http://workcover.forumotion.com/t6-dear-fred-this-is-how-it-was-and-how-it-still-is

        Q.
        Dear Fred,
        It seems strange to me that the Agents spend so much of the “System’s” money on fighting injured workers when they seem to be losing more and more cases.
        Regards,
        Litigant

        A.
        Dear Litigant,
        You obviously don’t understand how the game is played.
        97.8% of injured workers won’t / don’t / can’t stand up for their rights. Because of this there is a huge pool of money that has not been used to supply them benefits.
        The amount the Agents spend on litigation is just a drop in the bucket and is hardly noticed. A side benefit is injured workers see all the court battles and decide it’s not worth fighting even if we have abused their rights, again this adds to the huge pool of money.
        Don’t worry every one is making a very good living out of this, except of course the injured worker.
        I hope this sets your mind at ease.
        Regards,
        Fred

         

         

         

         

         

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        • Thanks Ataloss. I saw that write up, it’s well done.

          As for the legal system being corrupted I think that’s more than evident if you can read between the lines. The law is structured from a very anti-worker perspective and pays great attention to producing many ways in which Injured Workers can be financially stripped. The Courts are a lottery, with a bias towards the system. Juries are convinced by the Rorting Malingering Injured Worker Stereotypes so dominant in the media. How can an Injured Worker find justice in this environment.?

          Truth is they can’t. I think it will take a big campaign and legal class actions to really change the public perception and make justice for Injured Workers a possibility.

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  4. Angela, some advice from me.

    please don’t listen to ANY dictator. ask questions, file all reports, gather groups of people, and continue your pursuit if you wish. however at anytime you feel you want to stop then stop relax. if you wish not to well don’t..

    this is your life and you make your choices.

    remember to never be CONTROLLED BY DICTATORS. do as you wish 🙂

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    HuntingWorkcover May 23, 2013 at 6:38 am
  5. I dont know the full details but I did go & read from the links. Sometimes in life, its about choosing your battles. Just a thought 🙂

     

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  6. If people had read all the countless court judgements involving Ms Morgan over the last 20 years then you would have understood the context my comment was made in.

    Here is a brief synopsis for you to save you the many hours of reading them.

    This Angela Morgan was friends with a couple Mr and Mrs Mallard. Mr Mallard WORKED at the SA Workcover Corporation (this is how Workcover comes into the equation) . Mrs Mallard also worked with Ms Morgan. The Mallards fell out with Ms Morgan. Mrs Mallard was then injured at work and made a workcover claim. Ms Morgan then wrote various letters to then CEO of Workcover (amongst others) accusing Mr Mallard of very serious corruption and also making various vindictive and unfounded allegations in relation to Mrs Mallard and her workcover claim with the intention of causing harm to both Mr Mallard work-wise and to Mrs Mallard in relation to her workcover claim.

    Not surprisingly, Mr and Mrs Mallard sued Ms Morgan for defamation and won. The judge described Ms Morgan as an outright liar and her actions as just malicious, vindictive and spiteful.

    But Ms Morgan kept going. After running out of legal options so far as the Mallards, she then turned her sights on SA Workcover. And her beef with them? That the CEO of Workcover showed Mr Mallard her defamatory letters, which lead to Ms Morgan coming unstuck.

    Ms Morgan has continued all this obsessive and scurrilous action for 20 years now.

    Perhaps spare a thought for the Mallard’s or the poor South Australian’s taxpayers who are left footing the bill for all the unpaid costs awarded against Ms Morgan from her many, many actions before the courts.

     

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    • Madame Zena i don’t know the complete details of the story Morgan, Mallards etc. and i take no sides with this issue. having said that, Workcover SA and many other states schemes appears to be corrupt in regard to specific media story’s (EXPOSED) and the legislation itself. Injured workers should never back down at all from this draconian, vile, workcover system. i keep hearing people saying: tax payers fund workcover! in my opinion Tax payers do NOT fund workcover > BUSINESS’S fund it <

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      HuntingWorkcover May 23, 2013 at 2:32 pm
  7. The SA workcover machine is not without fault nor can it be blameless

    have a look at what this poor man went through,

    http://www.todaytonightadelaide.com.au/?page=Story&StoryID=584

    I like many feel that the system will go to the extreme to deny and blame the victim.

     

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  8. @HuntingWorkcover & @At a Loss – I agree. I have no doubt that the SA workers compensation system, like all the other states, is incompetent, useless, dishonest etc. but what I was getting at was that is ultimately of no consequence to Ms Morgan. My point was solely about her motivation and agenda for coming to the blog.

    Vexatious litigants are like psychopaths on steroids. And where better to hunt for people she can manipulate and co-opt their sympathies into in her long running toxic vendetta against her ex-friend and their employer Workcover – than a website designed for injured workers whom it can be guaranteed will have legitimate grievances and disdain for Workcover.

    And personally, I find it incredibly disrespectful (and quite frankly off) to all the other injured workers that come to this blog that have or have had genuine grievances with workcover as a result of being an injured worker and attempt to manipulate those sympathies to pursue her own agenda, which has nothing to do with the workers compensation system or being an injured worker.

    Ms Morgan’s supposed desire to expose the “corrupt system” is plainly highly selective….

    When Ms Morgan’s ex friend Mrs Mallard (the actual injured worker in all of this) submitted her claim to Workcover, it came to light that the owner of the takeaway shop where Mrs Mallard and Ms Morgan worked had never registered for Workcover and had never paid any premiums to insure their workers. Workcover sought to prosecute the dodgy employer. And Ms Morgan actions? – to act as a witness for the dodgy employer in the prosecution! She then attempted to have her ex-friends workcover claim cancelled by making false allegations to fraud section of Workcover and so on. She also made complaints accusing the doctor for the injured worker of taking kick backs to falsify information so workers could get claims approved.

    So Ms Morgan is hardly a champion for the rights of injured workers and exposing a corrupt system.

    So I am sorry if others took offence to my suggestion to Ms Morgan that it’s really about time she sought professional help to put to bed this long running personal vendetta before she finds herself in an even deeper hole. However I personally found her attempt to use this blog and the genuine people on it to further her agenda disdainful and rank. That’s just my personal opinion.

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