Yesterday we were pretty fortunate (so we think) to have been contacted by a former occupational therapist, now turned defense lawyer for workcover (aka the opposite side). We believe this lawyer does share some valuable tips with regards to litigating workcover claims, and how best to proceed in order to obtain your rightful benefits and compensation, such as the need to be firm and back up your claims in a strong manner, and to be honest /realistic about how much you think your injury is worth.
Workcover defense lawyer shares view from a neutral and opposite side
The view from a neutral and opposite side
As written by the defense lawyer
I used to be an occupational therapist and now I do legal work for the insurance companies.
I had a look on here not to snoop, but to get a better idea of the perspective of an injured worker.
As an OT, my colleagues and I often lamented how much longer it took people with a workcover injury to recover.
Understandable, given the unfairness of being injured through no fault of your own.
We just wished the litigation would be finished before the chronic pain and chronic pain thinking patterns had become established. The body adapts and becomes super sensitive.
Part of our treatment for CRPS (Chronic Regional Pain Syndrome, aka RSD or Reflex Sympathetic Dystrophy) was to encourage graded use and exposure of the affected limb, in an attempt to rewire the nervous system and how the brain interprets pain.
Pain IS in your head- but in a real, physiological way. It’s the body’s interpretation of a noxious stimuli.
I had terrible chronic pain as a teenager and though it’s still there I was able to use some of the treatment techniques I learnt on myself. Mine was caused by a car crash when my mum fell asleep at the wheel but blaming her forever didn’t stop the burning pain in my legs.
Now as a lawyer, I’m called on to ask whether we can deny a claim.
Sometimes we can’t, and depending on the case officer and our relationship with them, that makes us unpopular or they respect our opinion and do as we recommend.
The problem for workers is that there have been some major changes to legislation (in nsw at least) that mean entitlements that were always there simply aren’t available.
Get a lawyer early who can give your advice on how to negotiate the system and explain how it works, including the new changes that limit certain payments.
You *should be getting payments to mitigate your losses and pay for medical expenses.
Be as healthy, stable and distanced from your old employment as possible. No-one likes to be accused of bullying and their best defence will be to undermine your professionalism and credibility. Get angry, get outraged if you need to but realise it can only be helpful in the short term and looking after yourself is more important than revenge.
Thank you so much for contacting us, and for taking the time to write up some extremely valuable tips for injured workers.
It is always good for injured workers to try and better understand the other side of “the system”, as quite a few injured workers unfortunately (and indeed) become obsessed with their injury and in particular with a sense of ‘entitled’ revenge and blame; rather than to focus on their recovery.
Many have indeed unrealistic expectations when it comes to assessing their monetary compensation entitlement(s), and some even become angry with us (let alone their lawyers) for stating the truth. However we believe -in most cases -this stems from a lack of (legislative) knowledge, rather than a primary focus on money – as many injured workers have repeatedly stated: no amount of money (compensation) would fix their injury/shattered lives.
We posted an article about this not long ago which I entitled Workcover: three common delusions as well as various other articles under our Psych tag such as Injured workers, anger & hostile dependency – is it defensive fear? and When injury is used as vengeance
On the other hand many really very seriously injured workers are unfairly treated by the “system”, harassed, abused, denied vital medical treatment and other legitimate benefits, usually until (at least) such a time as they have received their permanent impairment assessments and scored very high (i.e over 30% WPI) – which can take years.
Unfortunately the system (insurer) don’t understand that when they are really nasty to us (and many are!), they also inflict further injury, physically (i.e. by denying vital treatment/surgery) but most often in the form of severe secondary psychological/psychiatric injuries, which in the end impedes recovery.
There is no doubt that many injured workers are mistreated. They do not receive approval for diagnostic tests (i.e.MRI, CT etc.), treatment is intentionally delayed by the workcover insurance company, procedures are denied or cancelled, prescriptions are rebutted and financial compensation (i.e. weekly payments, reimbursements etc.) is not sent. Their care is spanning many months or years with no end in sight. They have been extremely ill-treated by the adversarial wokcover system and/or by their (former) employer, their weekly pay denied, delayed, or they much needed care un-authorised. Their cases lost. They may be undergoing painful procedures or treatment. They are having to verbally bargain to get their medications refilled. They have to constantly prove they are genuinely injured.They are losing material holdings such as their home, they may be losing their marriage, friends and may be increasingly alarmed at what will become of their lives. As a consequence the injured worker, in a dependent position, may grow more and more resentful.
With regards to stress claims, we have highlighted many times that injured workers need to assess their “stress claims” very carefully,
As stated in our article “Stress claims: Workcover or a separation package? “The laws have gotten stricter and stricter on filing such claims. Virtually all of them are fought tooth and nail by the insurance company and, unless you’re truly suffering a serious psychiatric problem (aka illness/disease) directly because of your job (MUCH worse than just a horrible boss), we don’t suggest filing one….
Why man, why?
First, it begins with a full (and often extremely biased) inquiry into your “psychiatric well-being.” Your private life becomes an open book. Psychiatrists (those that work for insurance companies) test and evaluate you. “Psychiatric reports” are generated with your name at the top. The insurance company is permitted to look into EVERY POSSIBLE stress factor that might have a bearing on your current mental condition: Criminal backgrounds of you and your family, financial background, deaths in the family, marital problems, kid problems, sexual problems, prior psychiatric incidents, etc. etc.
So unless you don’t mind being questioned and investigated on every possible private aspect of your life, it’s usually not worth the trouble. (And unless you have a real good case, you’ll probably have trouble finding a reputable lawyer willing to handle it anyway.)
Saying that, there are of course real “stress” or “psychiatric” claims that should DEFINITELY get filed. There ARE very real instances of psychiatric work injuries. But these usually require (a) something fairly horrible happening at work which (b) AFFECTS you severely enough to require psychiatric treatment, and usually for a LONG time.
[Post dictated by WCV and manually transcribed on behalf or Workcovervictim]