Fact 1 : Companies and bosses are usually very concerned about injured workers submitting claims for workers compensation, because the amount of premiums that the organisation will have to pay to WorkCover is dependent on the claims history of the specific organisation.
Fact 2: The type of workers’ compensation which is the most expensive is: Employer fraud, such as misclassification of employees followed by Healthcare fraud, such as duplicate or over-billing.Employee fraud (injured worker fraud), such as malingering or faking an injury account for less than 1% of all workcover fraud, with the lowest dollar fraud from the insurer perspective. That means maybe $2000, $3000 and more often than not it’s about injured workers going back to work and not notifying the insurance agent that they are going back to work and drawing benefits while they’re doing it. Most often it’s because they don’t know better (i.e. too many forms, rely on the employer to inform the insurer, don’t know they have to do this, don’t speak English well etc)!
We also know there was a lot of talk about when we had the financial downturn really start to hit in 2008 (starting in America), there was a lot of speculation about would that raise the number of fraudulent claims. Of course the opposite was found to be true, in an economic downturn people would be trying to protect their jobs, therefore you would not see anybody who would even want to think about filing a claim, even a legitimate claim, at a time when an employer was downsising etc, and the fact is workcover claims did not rise at all.
Take injured worker J’s story, for example, and help us explain why his claim was denied? If we weren’t so familiar with the dirty tactics employed by both employers and insurance companies, we would have trouble believing the following story.
Injured Workers claim rejected by Workcover due to Big Business Cover up, lies & treachery
The injured worker’s shameful story
I was employed by a big business to collect and dispatch trolleys that weigh well over 200 kg & up to 300kg.
My induction training included a tour of the facility’s toilet locations and workstations and where to report for duty in the morning each day.
No mention of the risks & hazards involved in the day to day handling of such awkward and heavy loads.
Not a word on the fact that serious injuries of the type I received are a common occurrence under this employees watch.
The fact that the trolleys were beyond the limit of 200 kg and in breach of workplace legislation by some 10 times the acceptable limit was never mentioned.
A direct result of my workplace injury… And this is nothing…
I reported the incident directly to my supervisor the same day.
Workcover has rejected my claim through one of its agents ‘insurance company’ very much in the pocket of big business..
The “independent investigator” is not impartial. How could he be expected to be impartial when in the employ of ‘Big Business’
Upon the independent investigators findings, my claim was rejected..
Nice one (insurance company).. Emotive,arbitrary, bureaucracy..the decision of one offensive impartial coin grubbing scufflehunter… Saving the company money, looking for promotion..
No more physio allowed.. Shoulder now becoming frozen unable to move it..
Six months of incessant haranguing and mental anguish no physio.. shoulder becomes almost fully non functional.. no chance of employment.. Family unit ruptures..
I have just been reading the independent investigators report from my supervisor.
My supervisor has perjured himself in a brilliant move.. .He has been employed in the same facility for over 20 years, so is fully conversant & familiar with the way things are; one would expect to be able to trust as truth, the statement from this senior supervisor or from any person of this stature and this position…
They still weigh well over 200 kg… Is he just a complete imbecile!
My direct supervisor continues to avoid the fact of the truth.. ( I will be smearing this company and the supervisor globally with nothing but the truth… They are dirty, dirty players with all the money and non of the moral..
BUT.. none of this helps me..
No compensation has been received to date..
Would you say I had a case against the company?
I would go so far as saying contemptuous regard for the welfare of their employees.
With my kind regards
First of all, let’s take a look at the Occupational Health and Safety aspect of things (VIC):
If manual handling is a problem at your work place, then, as with any other hazard, you should approach your employer to ensure that the risks are eliminated or if this is not possible, at least reduced. Part 3.1 (Manual Handling) of the Occupational Health and Safety Regulations (2007) requires the employer to identify tasks involving hazardous/dangerous manual handling and implement controls to eliminate or, if this is not practicable, reduce the hazards and/or risks associated with the hazardous manual handling.
How do Manual Handling Injuries (often) Occur?
- Workers must adopt harmful postures in order to handle loads;
- Workers are expected to lift loads which are too heavy;
- Objects are not designed for ease of handling;
- Workplaces are poorly designed (including work stations), and
- Work systems are poorly designed, eg. frequency and pace of handing tasks increase the risks.
What are the legal limits for lifting (heavy) weights?
The answer to this is “There aren’t any”! – Part 3.1 (Manual Handling) of the Occupational Health and Safety Regulations (2007) does not have either weight or maximum force limits.
However, the Regulations require the employer to identify any task which involves hazardous manual handling, and then take actions to either eliminate or reduce the hazard and/or the associated risks. The Regulations include any task requiring the ‘application of high force’ as hazardous manual handling. The regulations give an example of “Application of high force”:
“The force required to lift or otherwise handle heavy weights, to push or pull objects that are hard to move, to operate tools that require the use of two hands to exert sufficient force but that are designed for one hand or to operate tools that require squeezing of grips that are wide apart..”
What this means is that any weight or force may be a risk to a worker, depending on additinal factors such as posture, frequency, duration, actions and movements, etc.
Needless to say, the greater the force exerted by the worker, the greater the risk and the workers and OHS Reps should raise this as an issue!
Are there legal requirements for manual handling? YES
The employer has the duty to eliminate or reduce the risk of manual handling injuries. Part 3.1 (Manual Handling) of the Occupational Health and Safety Regulations 2007 (VIC)require an employer to do certain things to do this.
In essence your employer must:
1 – Identify hazardous (dangerous) manual handling tasks
According to the Regulations, a hazardous manual handling task is one which involves any of the following:
- repetitive or sustained application of force;
- repetitive or sustained awkward posture;
- repetitive or sustained movement;
- application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;
- exposure to sustained vibration;
- manual handling of live persons or animals;
- manual handling of unstable or unbalance loads, or loads which are difficult to grasp or hold.
The identification of hazardous manual handling tasks must be done before these tasks are undertaken, or before changes are made to the workplace.
In this way, the Regulations put the emphasis on good workplace design, which includes layout, objects and work methods, rather than fixing problems later, after injuries have occurred.
Once hazardous manual handling has been identified, the new regulations assume there is a risk, and require the employer to take action (in consultation with the Health and Safety Representative and workers performing the tasks) to:
2 – Control the risk
The Regulations specify that priority must be given to fixing the workplace problems first and attempting to eliminate the risks, rather than requiring the workers to cope with poor design of objects, tools, layout and methods.
The Regulations require that controls be implemented in the following order:
- the workplace layout (eg. removing obstacles, providing more suitable space, re-designing storage areas)
- the workplace environment (eg heat, cold, vibration) where the task involving the manual handling is undertaken
- the systems of work (eg. not moving objects at all, or moving them less frequently, or reducing the pace of work),
- Changing the objects (reducing the weight, or fitting handles, or changing shape)
- Using mechanical aids (always checking these are well maintained, that operators are properly trained or licensed, and that new hazards are not introduced to the workplace).
See also WorkSafe publication: Preventing the unseen injuries in your workplace – a checklist to help prevent sprains and strains in the workplace, which are commonly caused by manual handling and slips, trips and falls.
The Occupational Health and Safety Act 2004 (VIC) requires an employer to provide ‘such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health’. While this also applies to manual handling tasks, training does not reduce the risk at source, and must not be used as the only control, nor as the first priority.
Duties of the workers
The Regulation requires workers to cooperate when the employer takes action to eliminate or reduce manual handling risks.
Code Of Practice
The Manual Handling Code of Practice, issued in 2000 under the 1985 OHS Act, provides more information and on how to identify, assess and control manual handling risks, as well as checklists to be filled out for specific tasks. It includes many examples and diagrams. While the Code of Practice no longer has the same status as it had, it is still useful until such time as the Compliance Code for Manual Handling is developed. The Manual Handling Code of Practice can be downloaded from the WorkSafe website or is available free from WorkSafe.
WorkSafe Victoria has a large number of publications on Manual Handling which can be downloaded from their website. There is a special webpage specifically on Manual Handling. Here are a few examples:
- Your health and safety guide to Manual handling
- Manual handling – Risk Management in a Large Organisation
- Manual handling – Risk Management in a Small Organisation
- Manual handling in the Food Industry
- A Guide to Handling Large, Bulky or Awkward Items
The Safe Work Australia Model Code of Practice on Hazardous Manual Tasks developed as part of the harmonisation of work health and safety legislation (December 2011), to support Part 4.2 Hazardous Manual Tasks, of the Model WHS Regulations.
So… even if your horrible supervisor, boss, company, whatever is lying about the weight about the trolleys (which by the way you could photograph, or have photographed and weighed by someone else as evidence), the issue at hand is that you sustained a manual handling injury, which is clearly within the definition of the Occupational Health and Safety Regulations (2007).
It would well be that you caused your rotator cuff injury through repetitive overuse (very common).
Another factor to keep in mind is that even if you did allegedly suffer from a pre-existing “injury”, any aggravation/exacerbation of an injury is also compensable, provided work is the main contributing factor.
So, if you can show/prove through for example your medical file (from your GP) that you have never complained of shoulder pain before, then you surely have a good case. If your orthopedic surgeon believes your injury is work related, based on what you tell him, again you have a good case. Your surgeon will be able to see inside your shoulder (i.e with MRI or arthroscopy) and provide irrefutable evidence. If need be go and see an orthopedic surgeon privately or via medicare.
Did you go and see a doctor straight after your injury? If so, surely the notes on file should suffice to prove the date of the injury (at work)? Was there a witness (i.e. colleague, work mate) when you injured yourself? (again, you could ask for a witness statement). What about friends? Is there someone who can testify your whereabouts shortly before your injury (i.e. you were not playing sport etc); statements from your spouse (never complained of shoulder pain before) etc etc.
The only other thing we strongly suggest is that you seek immediate legal advice: go to a reputable no win no fee law firm (first consultation is free) and get their advice on how to prepare the necessary evidence to appeal the decision at conciliation (in Vic), appeals tribunal (if in NSW) etc. Let us know in what state you reside and we can help guide you further in that regard.
Don’t lose hope! Many injured workers have their claim initially rejected, only to have them accepted at conciliation/appeal/ medical panel etc.