A Kennett era workcover insurance 15 year trap

insurance-trap

In Victoria, in 1992, Mr Kennett demolished injured workers’ rights for the worse and abolished injured workers’ common law entitlements , following which Mr Bracks attempted to reintroduce them with some success, however not to all injured workers who were adversely affected by Kennett’s cruelty. In fact we know at least of  some 5000 injured workers who have missed out from Mr Bracks’s changes, which, contrary and ironically to the NSW new workcover legislation reforms, were not “retrospective”. Needless to say we believe this is so unfair and so unreasonable – Governments should include all injured workers in the legislation changes already made and, more importantly- ensure that all injured workers are treated equally.

Take injured worker’s “O” story for example…

A Kennett era workcover insurance 15 year trap

Workcover insurance 15 year plan: injured worker’s story

I have been off work with a nasty spinal injury for over 15 years, so this is more a Saga than a story.

In 1997,the Kennet Gov’t removed the ability for employees to take Common Law action for injuries suffered at work.

When the Bracks Government was elected almost 2 years later, Common Law was restored, but despite election promises, was not made retrospective.

One of the reasons given was the perceived difficulty in contacting witnesses and obtaining accurate testimony, after a gap of up to 2 years.

(Sorry for the interruption, but how ironic is this in view of the recent NSW reforms who are blatantly, cruelly and unconstitutionally-dare we say- applied retrospectively to every injured sod?)

In response to the Kennet changes, a number of EBA’s were negotiated by the unions, with a number of conditions, including the calculation of weekly entitlements in the event of an injury, and for serious, permanent injury, a benefit of $250,000 through an employer funded Inc Linc policy.

Early in 1998, we were informed of these details at a whole of site meeting at [large company site].

The EBA’s had been agreed to, and signed by all parties concerned, but would not be certified for several months. But based on a “Handshake” work continued.

I was injured during the lunch break, on in 1998. My injury was the result of (what could be called “horseplay”) on the part of (some) people.
(This “horseplay”) was a daily part of life in that [place]. I know this because I WAS an employee of this firm, and left because of the attitude of the other employees, and the foreman.

Following the “incident” I had some difficulty in having my weekly entitlement calculated, and eventually accepted a lesser amount.  I simply needed some sort of income, and now believe the insurers preyed on this need.

(Around) 2000, I had major spinal surgery, where (dozens) of assorted screws, plates and other objects were placed in  my spine.

Later that year, I attempted to claim the $250,000 TPD benefit, only to find my employer had failed to pay the Inco Linc premium, and I was not covered.

I tried to take action through Arbitration, and was told I appeared to have a claim, and should seek legal advice.
HOWEVER, almost everyone I approached declined to help, quoting “Too Many Grey Areas”  “No Precedents” or hasn’t been tried before.

I had a couple of meetings with [powerful people] at the [union], but even he, with advice from [other powerful person], was at a loss.

[A few years later], and interestingly [some law firm who represents/works for Worksafe] were acting for the VWA, and contacted me asking for my help in taking those responsible for my injuries, to court.

I refused to help at first, as such action would have been of no benefit to me. I was pestered by [this law firm], and eventually agreed to help.

What about the perceived difficulties following a gap of over 5 years?

The court case came and went, and [that law firm] informed me that they and the VWA were happy with the outcome.

I thought it strange at the time that I was not required in court, ( being the victim).

During my dealings with [that law firm], they gave me some advice re the earlier failure of my employer to have me insured, and told me we were nearly “Out of Time” and would need $X, to start an action. With the prospect of 10’s of thousands more to continue. Needless to say I was unable to continue. ( Another Ploy ?? ) But they did tell me that my workcover payments would continue for “Life.”

I made some approaches to the Minister, requesting an Ex Gratia payment equal to the Inco Linc fund and pointed out the failure of the Arbitration system, and the Law, to help me.
Declined!

$250,000 Ten years ago,( and I would have disappeared into the sunset.) must now be nearing $750,000.

Life continued until [about a half a year ago), when my workcover inurer sent me to [a rehabber], to be assessed for a Return To Work program.

(Again, sorry to interrupt, but 15 years later???? WTF!)

A number of options were put forward, and eventually rejected, but I, ( ME STUPID) eventually came up with the idea of doing an online course ( name of the course ) and this was put to [the insurer].

I heard nothing for a few months and formed the opinion that [my insurer] may have deemed me unfit to do this course so I convinced my GP to state Alternate, or Modified Duties on my Certificate of Capacity.

[Sorry to interrupt, but ouch, ouch, ouch! Heading into dangerous waters here, especially if YOU are pushing when you are not fit!]
I was also sent for an “I M E ”  and as I was fearful the IME may also declare me unfit, I arranged for some one to drive me to the examination, and in the days leading up to the exam, I was careful NOT to do anything to aggravate my spine, and had consumed a near overdose of panadeine forte, to overcome any difficulty during the examination.

BIG MISTAKE, no SEVERAL BIG MISTAKES.

[Interruption: you took the words out of our mouths! Massive mistake!]

Because of the Cert of Capacity, and the flawed, and untried report from the IME, [my workcover insurer] has decided I have a work capacity, part time, and are stopping my entitlements.

I have been to the ACCS, and am awaiting an examination by a MEDICAL PANEL. In the meantime, I have no option and have to go to Centrelink.

My GP, has pointed out to me that [this particular workcover insurer] set a trap for us to fall into. He called them “Bastards” and has said he will no longer accept new workcover patients as he didn’t study medicine to put up with this rubbish.

The surgeon who operated on me, and I believe saved me from a wheel chair, no longer has anything to do with VWA, or TAC.

I used to think [my workcover insurer name] ? VWA were just a nasty pack of pricks…

…but now believe they are “Pure Evil”

I think the VWA now have a New Zealander as its CEO. ( Here on a 457 Visa?? ) They have managed to ruin their own country, and now want to wreck ours.
Check their website. They are NOT taking applications for inspectors, or investigators, and are actually reducing their staffing levels.

[Sorry for the interruption again – you are right, our “Fish Face”- so duped by our very own political editor, Ms Denise Cosgrove is on a  mission of her own, pruning Vic’s “low hanging fruit” and the latest we heard is that she wants to abolish our common law again! – see our articles]

The Napthine Government is about a year away from an election and is cutting costs in every department, in an attempt to make their economic policies look good.

The Ambo’s are still fighting for a fair deal, and it now seems that cost cutting may have had an impact on premature babies, at the “Womens”.

Is the other side of politics any different?  Not from my point of view.

If I can help anyone out there, or if you have a comment, I’m here.

Regards,

“O”

Advice please

We do know from our interactions on this site that there are quite a few seriously injured workers who were injured under the ‘Kennett” era; some of who have been able to receive a “lumpsum”; some who have been extremely ill treated YEARS down the track by their insurers, for example we know of one seriously injured worker who had his/her SERIOUS injury downgraded by at least 20% at the whim of a really EVIL case manager who alleged all sorts of things including malingering, even though this seriously injured worker turned out to face IMMINENT paralysis! We also know of another seriously injured worker who has been harassed with “re-training” and return to work, some 20 years after a very SERIOUS back/spinal injury and we happen to have met this injured worker who can barely sit from the pain -s/he is gaunt, looks in tremendous pain, shakes and shuffles like an old man/woman!

We would love to hear from these Victorian  injured workers (anonymously) or any other seriously injured Victorian worker who was injured during the “Kennett era” and share their stories, opinions, share some advice, or provide some much needed guidance to this injured worker “O” (and many others in the same situation) on how best to tackle the “situation”. Also any good lawyers/law firms you know of who have successfully acted on your behalf would be greatly appreciated.

Medical Panels

Just wanted to let injured worker ‘O’ (and others) know that s/he made a wise decision to refer the matter to conciliation, who then referred the matter to a Medical Panel as it is a medical question: in this case: Can injured worker ‘O’ work or not? We believe it’s important you’re somewhat re-assured that medical panels are very honest (at least much more honest than IMEs) and most of us have been happy with the outcomes of our panel assessments. They do understand the system and the traps and treachery of the workcover system and are quite empathic. However, they may want to know why you tried to get yourself  “certified” fit…? Something you may want to think about carefully. Did you have a “good day?” Did you over-judge yourself? Did you go nuts? Out of your mind? Is the prospect of living a life void of “work”, social interaction, social contribution etc making you totally depressed? Did you want to give it a shot? Did you try sitting for 30-60 minutes on a computer and write an “essay” only to realise you will have serious trouble undertaking an on-line course? Do you feel hopeless? Were you under duress? Harassed by your insurer? We believe the important thing is to be honest with the Panel.

When a matter is referred to a Medical Panel for a decision to be made, it basically involves a full medical examination of the injured worker ( to the extent relevant for a claim – body area).

The Panel will be made up of a number of Medical Practitioners which will usually reflect expertise in the different areas of injury that an injured worker has specified. However, something that few injured workers are aware of, is that many IME’s routinely “rotate” through the medical panel – but, if a “bad” IME has to assess an injured worker in the presence of several other doctors, chances are that s/he will have to be a little more careful and… honest!

Medical Panel doctors display quite a high level of independence. Their medical examinations tend to be very careful, and professional . Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds.

Indeed many injured workers report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations.

It is possible for an injured worker, usually through their lawyer, to make a written submission to a Medical Panel about a matter. This usually only occurs if there is some particular or unusual aspect to the matter which needs to be drawn to the Medical Panel’s attention. If a written submission is made to a Medical Panel it is important to keep the submission very brief in order to ensure that it has maximum impact. (Again seek legal advice).

The way in which an injured worker  presents a Medical Panel examination is extremely important.

It is only natural for an injured worker to think that they have to argue their case when they attend the panel. All medical practitioners have various and pretty much fool-proof  methods for checking the accuracy and consistency of the injured worker’s presentation at the examination.

It is important to resist the very natural tendency to want to make sure that the Panel understands the full scope of the effects of an injury. What the Panel is interested in, is the careful and precise analysis of very specific symptoms. A very accurate description of the symptoms, presented without any embellishment will mean that the Panel will conclude that the injured worker  is reliable and honest. It is normal for specific injuries to have symptoms in a very specific anatomical pattern. For example, the distribution of pain in a leg from a back injury usually will be quite localized depending on the level of the disc involved. Simply, asserting that the entire leg is sore will not be as effective as giving a very precise and accurate description of the specific areas affected.

You may also want to read our articles posted about Medical Panels; such as:

For those interested in a little history:

In 1985 the Accident Compensation Act (WorkCare) was introduced by the Cain Labor Government. It’s primary  focus was on providing rehabilitation services as soon as possible after injury to return injured workers to gainful employment and also to enable the worker to return to normal community life. WorkCare gave weekly payments (80% of pre injury
average), quickly and ongoing until return to work or retirement age.

In 1992 when the Kennett Government was voted in,  WorkCare was changed to WorkCover and there were numerous draconian changes made to the workcover system. The first butchery was to throw more than 6000 long term injured workers off the compensation system; limited workers’ rights to claim compensation; reduce access to rehabilitation and abolished union representation in policy making.

Approximately every 6 months thereafter for the next 7 years or so, there were changes made to the Accident Compensation Act. Most of these changes reduced injured worker’s entitlements to compensation of course.

Common law , or the right to sue negligent employers was abolished in 1997.

By October 1999, when The Labor Party was re-elected entitlements for injured workers had been dramatically cut

These cuts included (but are not limited to):

  • the need to prove that employment was a significant contributing factor
  • the exclusion of  compensation of a large proportion of stress claims
  • the exclusion of workcover compensation claims if workers had not told (actual or potential) employers that they had (in the dim and distant past) suffered an illness or an injury
  • no compensation rights unless an injury report has been made within 30 days
  • the scrapping of the specialist appeals structures – replaced with conciliation and the magistrate/county court
  • the exclusion of injuries that occurred on the way to or from work (= journey claims)
  • reduced weekly payments-  payments dropped to 60% for people who had a capacity to do anything other than pre-injury work (whether a job was provided or not) ; after 104 weeks: injured workers who could still do nothing, forever, continued to receive 75%; and workers who could theoretically do something, either now or in the future, received no weekly pay
  • medical expenses were terminated 12 months after weekly payments were ceased
  • common law (the right to sue negligent employers) was abolished – already since 1997
  • compensation for permanent injury had been removed from or reduced because they had established new ways of measuring impairment( American Medical Association Guides (AMA) to the Evaluation of Permanent Impairment -with a 10% whole person impairment as a threshold for physical injuries.) etc etc

After Labor came back into government, there have been some improvements for workers. the main improvements are:

  • After October 1999, Common Law was reintroduced for some injured workers ( BUT fewer than before November 1997).
  • On 11 March 2010, the Victorian Parliament passed the Accident Compensation Amendment Act 2009 (an amending legislation), which contained significant, quite positive reforms to the workcover legislation affecting Victorian injured workers. We got there because in 2007, the Victorian Government commissioned Mr Peter Hanks QC to review and report on the Victorian workers compensation system. He was basically asked to review the efficacy and sustainability of the Victorian workers compensation scheme.QC Hanks then undertook this review and presented a report, called the Hanks Report (2008) which detailing over 150 recommendations for reform. The Victorian government responded to that report in 2009, and then  introduced a Bill into parliament to amend the Accident Compensation Act 1985 (Vic) and also the Accident Compensation (WorkCover Insurance) Act 1993 (Vic). Changes were made in the following areas:
  • return to work :

    • return employees to work where they have a partial or complete capacity to do so (for a period equal to 52 weeks following their first notification of a claim)
    • plan the return to work of a worker
    • consult with the worker regarding the return to work
    • nominate a return-to-work coordinator
    • make a return-to-work plan available.
    • Penalties of up to $100,000 will be in place for employers who fail to meet these obligations to the relevant standard.
  • claims for mental injuries : an extensive definition of what ‘reasonable management action’ is…
  • entitlements:  Maximum lumpsum death benefit increased from $273,970 to $503,000; maximum lumpsum impairment benefit from $409,200 to 503,000; Shift allowances and overtime included in calculation of weekly payments from Included up to 26 weeks to Included up to 52 weeks; and Superannuation payments

  • prohibitions on discrimination: introduces laws prohibiting the discrimination of employees on the basis that they have given notice of an injury or have taken steps to pursue a claim for compensation.
Most of the amending legislation were  effective as of 5 April 2010; however, some provisions, including the following key issues, had separate commencement dates (and did not apply retrospectively):
  • Changes to return to work regime — 1 July 2010
  • Increase in lump sum death and permanent injury benefits — 10 December 2009
  • Broadening of the exclusion against discrimination — 1 July 2010.

For a good overview of the reforms of 2010, click here>>

However, fact is that many people who were seriously injured through negligence between November 11, 1997 and October 20, 1999 were and are left in the black hole.

 

[posted on behalf of workcovervictim]

 



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One Response to “A Kennett era workcover insurance 15 year trap”

  1. I have said it before, I will say it again, sue for personal injury, have nothing to do with Workers Comp in any state you are in. Read about the guy with the injured knee in the paper today http://www.canberratimes.com.au/act-news/windfall-for-fitness-students-dodgy-knee-20130917-2tw8s.html. Of course it is too late for those already on the system and it is very unfortunate that injured workers did not take these blatant attacks on our common law rights to court years ago so that there could be a precedent. What we are left with is system that is not a Workers Compensation system in any shape or form, just a money grabbing exercise for insurance companies and various governments with abuse and harassment being standard acceptable practice. Seems like unless we bombard politicians, legal entities, AMA and the media with our stories, nothing will change. I am so sorry for this injured worker, I wish there was something that could help them.

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