FURTHER UPDATE ON THE NSW GOUDAPPEL v ADCO CONSTRUCTIONS

goudappel-16may2014

Great news for NSW injured workers – The WIRO has confirmed that they will legally assist those injured workers affected by the June 2012 changes who are now, -because of the Goudappel decision- entitled to bring further claims for deterioration of their condition, for pain and suffering, and are no longer required to meet the much higher 11% whole person impairment threshold to bring a claim for lump sum compensation.

You may recall that on 29 April 2013 in this landmark case of Goudappel, the NSW Court of Appeal 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

FURTHER UPDATE ON THE NSW GOUDAPPEL v ADCO CONSTRUCTIONS

I have become aware of a further delay in the consideration by the High Court of the Special Leave Application.
I have made a decision to fund all matters that may give rise to a claim for compensation arising from the Court of Appeal’s decision in the Goudappel matter.
Funding includes the obtaining of the medical evidence to support a claim.
When making application for funding, Approved Legal Service Providers will need to provide some evidence in the application to the effect that a claim of any type had been made by the worker prior to 19 June 2012.

FOR MORE INFORMATION
Please contact:
Kim Garling
WorkCover Independent Review Officer
13 9476
contact@wiro.nsw.gov.au

(Source WIRO WIRE)

Issued 14 August, 2013

 

Direct link:  http://www.wiro.nsw.gov.au/media/18701/2013___august_14___goudappel_update.pdf

 

29 Responses to “FURTHER UPDATE ON THE NSW GOUDAPPEL v ADCO CONSTRUCTIONS”

  1. The Appeals court upheld Goudappel’s case so that means that their decision should be being implemented. As usual the government and its agents are trying to get around that and hope no one notices they are breaking the law. I wonder how many retrospectives (pre June 2012) have actually been removed from weekly benefits and medical benefits, because they seem to be going quite slowly. Maybe they are waiting for the Supreme Court decision and holding off somewhat, I may be wrong on this. Anyone know how many?

  2. mmmm employ a mongie wow i feel for your situation limbo we are all in it we wait wait and we wait a bit more be prepared for the delays I’ve going for a tad coming up to 4 years and its the same shit it all turns real slow but keep yourself occuppied abuse a politician kick the dog go fishing but what ever you do don’t hold your breathe

  3. Hmmmm I just rang wiro and it seems they have a huge backlog of applications for solicitor funding and it seems this practice isn’t working (my opinion) It’s been over a month ands now I’m told another month or more! ! Maybe they need to employ some of us to help with the issue?

  4. ILARS = LIARS

    this is really all they are concerned with their ratings and keeping the jobs that were gifted to them by the corrupt Pearce.

    http://www.wiro.nsw.gov.au/media/17324/2013___july_29__update___ilars_survey_resultsv2.pdf

    • @ not defeated have a discogram your neurosurgeon can order it. That will confirm if the disc has healed or like mine they were leaking into my spinal column. Now I have what my gp calls is permanent spinal nerve damage. I have continual unremitting, intolerable spasming from my hips down,pins n needles, sharp shooting knife like pain in my feet and continual cramping in my calves. And there’s the back pain, can’t sit for more than a few minutes. Boy, the lack of sleep really makes me feel anxious and stressed. So that is damaged nerves! Do you have any symptons like that not defeated??? When your on workcover is really hard to get a diagnoses they don’t want to say or call it however my neurologist ( who I’m not allowed to see anymore the insurance co said) unless I pay $350 said he thinks I have Arachnoiditis! Which is a serious condition….. However, I’m not seriously injured because I was assessed under 30%….And I’m waiting for a work capacity decision ATM….probably saying I’m fit for work…I just want to cut my legs off…. I could tell you lots more but better to talk on the forum I think??? Are you in nsw not defeated?

      • In Limbo.

        By all the injuries / symptoms you have described it seems you have been under assessed.
        Have you been assessed by the insurers doctor only ?

        Remember it is in your interest to shop around for better legal advice better representation and strategies.

        • At a loss , should I try an independent specialist and not tell them it’s workcover ? My ortho is on the qcomp medical panel ( I googled him and found out ) he has been a decent man and has helped keep my cow case manager at bay but doesn’t seem to communicate much to me . Thankyou for advice .

          • If you’ve been seeing your Ortho for a while I’d discuss with him whether he would write a report for you. He’s obviously in the best position to do so. Also,he won’t be able to see you as a member of the Medical Panel, so best to get his input to the decision making with a report from his first hand long term knowledgeable position re your injury. In Victoria, not sure about Qld, his report could be paid for by the Workover as part of your preparation for Conciliation Conference.

          • Not defeated,
            unsure about QLD system.
            however speak to your solicitor first. if you don’t have asolicitor get one if your solicitor cant answer your questions change solicitors.

            for myself I would see another Dr especially if surgery is on the cards.
            remember a lot of surgeons earn their $$$$ by cutting into people. As for the insurance so called specialist they make their money other ways…

        • Yes, I was asseessed by a professor and it was much higher however, not 30%…it was a question of do you want to accept the lower assessment or wait another year and another IME appt…I’ve lost count on how many IME appts I’ve been to. So as I’ve said before here, i accepted the lower %…because I needed the $ because of the loss of wages….hmmm.

          • @In Limbo -and others who may be interested- I assume you are based in Victoria where a 30% WPI is necessary to qualify for “serious injury” – however, just thought I’d re-highlight that many injured workers who do not come near 30% WPI are successful at their applications (with a lawyer) for a serious injury certificate through the qualitative test/narrative test in Court. – See: http://workcovervictimsdiary.com/2013/08/qualifying-for-serious-injury-in-victoria-using-the-narrative-test/

            In fact we very recently heard the story of a Victorian injured who was able to establish that her injury is serious enough to obtain compensation for pain and suffering as well as loss of income (= pursue a common law damages claim)

            The injured worker sustained an injury to her shoulder which prevented her from returning to work and performing her usual activities (which was quite labour intense). Most importantly perhaps, In addition to her physical limitations, the consequences of her injury also had a profound psychological impact on her. You can imagine that living with pain, losing your career, hobbies etc and dealing with our extremely adversarial workcover system makes many of us mentally ill.

            Her Lawyers lodged an application seeking recognition from the Victorian WorkCover Authority that the injured worker had sustained a serious injury, which was rejected. (She also rated just 12% WPI) .County Court proceedings were thankfully issued and the matter was heard in late July 2013.

            In delivering his findings, His Honour found that the injured worker’s psychiatric condition had clearly deteriorated as a result of her physical restrictions, and particularly when further treatment was of no benefit. In the court’s opinion, the injured worker had been “overpowered” by her psychiatric condition and this prevented her from returning to any form of employment in the foreseeable future.

            The court findings means that this injured worker is now entitled to pursue pain and suffering damages, as well as compensation for lost earnings….

            So what I am saying is that more and more injured workers who are rated as suffering from “less than the the almost unachievable 30% WPI” (in Vic) are successful at obtaining a serious injury certificate via the narrative test and as such proceed with a damages claim.

            Always discuss this possibility to the fullest with your lawyer(s), especially if there is any form of negligence involved on the part of the employer.

            workcovervictim3 August 25, 2013 at 12:42 pm
            • Unfortunately, I am based in nsw. The new laws passed last June means I can’t be reassessed! And I accepted the lower impairment early this year! There’s no going back for another one thanks to those laws! I am totally over 30% according to my gp and especially if it would’ve included the secondary psychological Impairment because of the bullying I endured from upper management and my so called work mates!

          • Hi In Limbo,

            AS your injury predates the new Legislation in NSW, I believe that you are covered by the previous legislation. Contact the Injured Workers Support Network (IWSN) in NSW and get their advice. They are pretty well on top of the situation and what options you may have.

            http://www.injuredworkerssupport.org.au/

            • Hi FU_CGU, yes I’m subscribed to that website and i get the updates. Phil was very helpful to me when I called him probs more than a year ago!
              And yes I’m covered by the previous regulations but aren’t they void now until the high court makes its judgement?
              Cheers In Limbo

            • In Limbo,

              My short answer – fucked if I know 🙂

              Talk to your “lawyer man”

      • In limbo , I’m in qld . My left back leg above my knee and calf are permanently cramped , my front ankle to big toe feels pressure / burning . My left foot is 50 percent reduced in raising on heel compared to right foot . I either limp or waddle . Ortho said no nerve compression showed on MRI so no one seems concerned but they put me on lyrica for nerve pain . I still have intermitten sciatica in left and right buttock and central biteing back pain . Thankyou for helping me 🙂

        • not defeated

          Perhaps you need to see a different kind of specialist perhaps a neurosurgeon I don’t know you need to discuss with your GP or search the internet example sciatica neurosurgeon

        • @ Not defeated, it could very well be internal disc disruption, you may want to google this condition as it lays undetected by MRI- CT scans and can be found with a discogram, I had a positive discogram to 2 levels without nerve compression showing on films. The doctors are aware of this condition but choose to ignore it, moreso if it is a Workcover Dr you have been sent to see. When you take your car for a service and it has a misfire, they do a test and not find anything, they do further diagnostics to determine the fault, so why do doctors not perform more invetigations to determine the pain, this costs money are we are only a number. IDD has similar pain patterns to nerve impingement due to the nucleus material now in contact with the spinal cord/ nerve endings. I hope this helps.

  5. NSW Injured Workers, Contrary to the recent media release from WIRO there are still delays in receiving legal assistance from ILARS which should really read as LIARS. My solicitor has just informed me that LIARS are waiting for the appeal in the Goudappel decision. So anyone affected will be waiting for a further month or two even if your case does not rest on what the decision outcome will be.
    LIARS administers funding to the solicitors looking after your case and are waiting for the next decision. This all came about after Fred Senile made a late amendment to the draconian act that was rammed through parliament which means that win or lose you the victim need to pay for your legal’s.
    This is a reminder that when we the people vote that we must make sure that these smaller parties are not going to make deals with the parties that can and will hurt us most like the shooters party.
    .

    • @ At A Loss my solicitor is also waiting for funding from ILARS…So looks like he’s not going to get it, if this is what you’ve been told. This is just my worst nightmare! i’m also waiting for a work capacity decision however, I was terminated from my nsw government job and I am unfit for work. I have a panic attack every time I hear the mailman.PSTD from the injury and all the unfair dealings with the insurance co and IME’S..I’m on the stat rate nsw and it looks like i’m not going to get the pain n suffering payment I’m entitled too. I hate talking about money however, when I used to have quality of life and money from a job, LIFE was SO much BETTER!!! I’m also looking at homelessness because I have no money!
      OH No the Postie just arrived as I write this,my heart is beating so fast now…LIARS is right at At A Loss! have you read the presentation on WIRO to the uni students?

      • And the worst decision of my Life was to have a double spinal fusion = sciatica irritated nerves deteriorating quality of Life! Actually I don’t have a Life anymore due to intolerable unremitting neuropathic pain,anxiety,stress and no money,honey! I am not the bubbly, happy person I was before my injury. I can’t move without painkillers and my so called friends don’t understand!

        It’s a disgrace to a human being to be treated like a number! My case manager hasn’t got a clue how to handle my case and I am refused everything so I have to pay for the much needed treatment myself. I just found out I can go to centrelink and get a low income card so I’ll be lining up for that when I go out which isn’t much these days! How do I join the forum? I’m in need of some friends!

        • hi in limbo,

          hang in there you will be victorious.
          when was your injury?

          • @Limbo (and others who have applied for rego with the forum), please be a little patient (I know we keep saying that) but with our Poo again out of total action, we’re struggling to access the back side of the forum, where regos take place. We’ll sort it out ASAP and consider yourself pre-approved.

            workcovervictim3 August 23, 2013 at 3:08 pm
          • My injury was in 2008 however I struggled to work everyday for 2 years before surgery for 2 torn discs!

            • In limbo . I’m so sorry for you ! . I have a current torn lumbar disc with nerve entrapment , wondering if you got told yours would heal ? I have been told that but 16 weeks later its better but still painful every minute of every day .

            • Hi In Limbo your injury was pre Workcover changes,
              hence the Goudappel decision is of importance to you.

  6. The ONLY way to counter this is in the courts. The O Farrell government has trampled all over worker’s basic common law rights. There is no higher courts in this land which would accept this kind of lack of procedural fairness. As long as people and that includes lawyers, civil rights groups, injured workers, the medical profession and unions fail to challenge this, then the more we will suffer. The latest news should also be a wake up call for the apologists of the LNP. Because now going to and from work is not covered by Workers Comp, there will be a rise in Greenslips in NSW to pay for people who are injured. This is basically a sneaky tax increase on the people of NSW, but of course most will accept it and not connect the dots .

  7. We received the following email from NSW injured worker “D” which we believe is worth publishing here:

    Just thought I’d give you some insights into what takes place during the whole process, from Work Capacity assessment,  Internal review, Merit review and finally,  the Wiro application.

    The first major hurdle is that,  nowhere during the process can a legal rep be paid, or represent the individual,  until the case has gone beyond the WIRO decision stage.

    Also,   a persons treating doctors recommendations,  can not be used to counter the over bearing weight and influence of the Insurance companies “independent ” medical specialists,  who’s reports are then used almost exclusively to reach a decision.

    So, from the work capacity assessment stage all the way through to the WIRO decision, the decision making process, is almost completely out of the Workers hands.

    Also,  according to WIRO,  even if they rule in your favour,  they can only make recommendation to the insurance company, and you would then have to go the legal route to attempt to have those suggestions put into place.

    Another issue is that,  insurance companies, legal reps, Work Cover and also WIRO,  can not even properly define the very meaning of certain terminologies or words used,  and how these terminologies and words will play out in the decision making process.

    For example:  Wiro has used the word “Binding” regarding their decision.  Yet, they(the person I spoke with) could not even  define Wiro’s use of term  “binding”(I understand the proper meaning, though Wiro are very vague on certain aspects) .

    They “Wiro’ are almost making this up as they go,  as it seems they are basically heading off on uncharted waters.

    Basically,  though,  a person may have no choice whatsoever other than going through WIRO,  they may end up going from the “fat to the frying pan” in the process,  as WIRO,  seem unsure(slightly vague) of how their own system works.

    The Insurance Company(my case manager) stated they did not even fully understand the Merit review decision,  as far as what rights I now had regarding previous restrictions and also make up pay.

    If I find out any useful “practical ” information that may be of use,  Ill drop an email in.

    Best regards,

    “D”

    workcovervictim3 August 16, 2013 at 8:57 am
  8. This is a good sign, it means that they have finally actually implemented what the Appeals court decided and not put it on hold until the final decision of the Supreme Court. It also means that they assume the Supreme Court will rule in favour of the Appeals court and throw Barry O Farrell’s (ADCO, yes he is behind it)  defence argument out. When this happens in a few months, the flood gates for the retrospectives will open. You cannot have a decision that has been reached on the basis of retrospective application being wrong only applying to part of the amendments not applying to the whole lot. There may need to be another court case to prove it, but if all goes well, those affected by these disgusting Insurance company based amendments may be able to sleep a bit better at night.