What are Class Actions really?

class-action

We recently received a very insulting message via our tip us off page stating “I think this site is a scandal in itself. If you people were genuine, you’d do everything in your power to help injured workers. I’m still waiting for the class action against workcover nsw. (Seems no one on this site is interested). I think this site is run by workcover….” [extract]. So, let’s address some of these ‘issues’, specifically the issue of class action(s).

Sometimes a wrongdoing can affect more than one person. If this happens, a specialised legal team (i.e. Shine Lawyers, Maurice & Blackburn, Slater & Gordon etc) can make a group claim on behalf of everyone affected. This is known as a class action. Class actions allow individual claims to be brought together in a single action against a defendant. One of the main advantages of joining a class action is that it can speed up the legal process and reduce hassle and cost.

Essentially a class action can (potentially) bring to account a wrongdoer who causes widespread harm.

If the case is successful, the Court can then fairly divide the compensation amount between the group. It is also important to known that Class action legislation varies between Australian states and territories.

It is NOT possible to commence a class action in order to change a law, such as for example the 2012 NSW workers compensation legislation (and to change it retrospectively). Frankly if it were even remotely possible, specialised law firms would have jumped at the opportunity! Read more about how laws can be changed in Australia below.

You may recall the “Class Action 15%” (NSW) launched by Vincent Marty, which consisted of a letter/petition to the Prime Minister re the 2012 NSW workcover legislative changes, particularly focused on the elevated whole person permanent impairment of 15%

class-action15

Currently the link to this “class Action 15%” states the following:

Due to the lack of interest of injured workers to do something to get them out of their situation and because they expect someone else will do something about the situation, the Governments have won and have taken away our rights to compensation…as nobody care, why should I ? ..I tried for 3 years but nobody want to help  themselves; In addition injured workers see me as a trouble maker that will end up making the situation worse for all? WTF! ???

In fact many people, incl. many injured workers and advocates (including aworkcovervictimsdiary) have attempted mass petitions for change,without success. For some reason it is painfully difficult to have injured workers (or any interested person) to sign such petitions. Perhaps this is because injured workers are worried about potential ‘repercussions’ (ie. from workcover, insurer etc) by publicly signing their names…?

What are Class Actions really?

A “class action” lawsuit is one in which a group of people with the same or similar injuries (or damage) caused by the same product or action sue the defendant as a group. People seek justice in class action lawsuits when their injuries have been caused by defective products, including pharmaceutical drugs, motor vehicles and other consumer products, and medical devices. Other types of conduct over which people have sued as a class include consumer fraud, corporate misconduct, securities fraud, and employment practices. Another type of class action lawsuit is is a multi-party lawsuit based on a massive accident, such as an airplane crash, in which many people are injured or widespread personal injuries caused by a defective product, such as a medical device.

It’s important to understand that a “class action” is generally when a number of people have suffered the same or similar injuries.

More specifically, in Australia a class action is a term used for a court proceeding where the claims of a large group or “class” of persons are brought by one or a small number of named class representatives against the same respondent(s). They are also known as representative proceedings. In Australia, there are regimes for representative proceedings in both the Federal Court and in the State Supreme Courts. The NSW and Victorian Supreme Court regimes mimic that of the Federal Court, while some of the other States have a different model.

In Australia, a class action can be commenced where:

  • seven (7) or more people have claims against the same person(s);
  • the claims are in respect of, or arise out of, the same, similar or related circumstances; and
  • the claims give rise to at least one substantial common issue of law or fact

There are many examples of class action lawsuits

For example, a class may consist of:

  • a group of employees (workers) who were subjected to race discrimination
  • a number of patients who were prescribed a drug with harmful or damaging side effects
  • a neighbourhood of residents whose homes or families were injured by a toxic spill
  • all the consumers who purchased a defective product that caused them injuries,
  • or corporate investors who suffered fraud in the purchase or sale of stocks and other securities

In Australia there have been and are several Class Actions running by several specialised law firms in a diverse range of area such as:

  • Shareholder class actions involving disclosure obligations, misleading and deceptive conduct by companies in takeovers, in prospectuses and in releases to the ASX
  • Consumer actions such as the unfair bank fees case and Cash Converters payday lending case
  • Negligence claims as highlighted by the current Queensland floods and Black Saturday bushfire actions
  • Cartels involved in price fixing and market rigging, such as Amcor Visy and the Air Cargo class action, and
  • Defective product cases for things like breast, knee and hip implants

Current Class Action Examples in Australia include:

Class actions are or can be a highly effective and efficient form of “civil litigation”.

If you have been injured by a product’s side effects or an environmental toxic spill in your neighbourhood, the best means of redress is a class action. If you have been injured by a product or person and you think there are others in your situation, you should seek legal counsel from a lawyer/law firm who is experienced in representing classes of injured people in this specific type of lawsuit.

class-action2As you can see, you can’t just start a class action in order to change a law, because you have not been ‘injured’ or ‘damaged’ by a specific product, a toxic spill, fraud and deceptive conduct etc. But, yes, you (and we) are in effect all insulted and most of us do suffer major damage and loss because of introduction/amendments of harsh and unfair state workers comp legislation(s).

So how are laws changed in Australia?

There are several ways to change a law in Australia. Often if a law needs to be amended/changed, it is because of public pressure and lobbying. Once the interest is noted, law reform commissions sometimes undertake research into the laws, make recommendations for reforms and present them to parliament – this process involves expert consultation, public submissions and the like. Sometimes the Senate may also hold an inquiry into certain laws.

Once parliament has received submissions to change a law, then it goes through the normal law making process (i.e. first, second, third reading, debate, votes etc) in both the lower and upper houses. If it is passed then it needs to receive Royal Assent.

Sometimes it’s only part of an Act that needs to be changed, maybe only one or two sections. For example if I have an act called the ABC Act 2012 and Section 12 needs to be changed, rather than changing the act all together, it is likely that Parliament will pass an ABC Amendment Act 2012 with the new Section 12 and repeal the old Section 12.

The other ways that laws can be changed is through judicial interpretation. This is where the courts interpret the meaning of a Statute in a different way, thus effectively changing the law. Generally this happens with the Constitution as the Constitution can only be altered through judicial interpretation or referendum (explained next) and judicial interpretation is much simpler!

For example, s 51(xx) of the Constitution is known as the corporations power – this gives the federal government the exclusive right to legislate regarding corporations. When “Workchoices” came in, it was argued by the State governments that the Federal government did not have the right to make laws regarding industrial relations. The Federal government argued that the corporations power could be expanded to include the internal structure of corporations in Australia, thus allowing them to legislate regarding employment contracts. The High Court agreed with this argument, and as such, the meaning of corporations has expanded to include internal and external workings of corporations.

Finally a referendum is a way to change the Constitution. The Constitution can only be changed in two ways, judicial interpretation (as explain above) and referendum. A referendum is a vote put to Australian citizens regarding a proposed change to the Constitution. For instance in 1999 there was a referendum held to decide whether Australia should become a republic.

In order for a referendum to succeed, not only must a majority of citizens vote in favor of the change (50% plus 1) but a majority of states/territories. This makes it quite difficult to referendums to succeed indeed. Whilse many referendums have been held in the past, only a few have succeeded, such as women’s right to vote, aboriginal right to vote etc.

Finding out about laws that have been changed: note

If you look at an Act (i.e a Workcover Act), many of them have a ‘legislative history’ section at the end which shows details of all the changes that have been made to that Act since it was first made.
If you want a federal law, you will find them at http://comlaw.gov.au
Each state also has its own website for legislation. You should be able to find them easily enough.
All Australian legislation (pretty much) can also be found at http://austlii.edu.au

Additional reads

What a workcovervictimsdiary is about: as stated on our “about” page:

First of all, we’re not going to misrepresent ourselves – that is aworkcovervictimsdiary- and tell you that we have special influence(s) with state legislators and even politicians. We don’t, and neither do some of the others, or we would already have meaningful, fairer workcover legislation signed into law to really help injured workers survive this ordeal known as workcover, work-over or workers compensation.

Our primary goal is to help, assist, educate, inform and empower injured workers  to better understand how to navigate through an ever complicated and convoluted workcover system and not become victims of overzealous workcover insurances and their investors (stakeholders). One way we accomplish this is through aworkcovervictimsdiary, a site that is more than just a ‘glorified’ blog, which provides very important information resources for Australian injured workers! Read more here>>

Class actions in Australia

The following Australian Papers and Guides adopt a mainly Q&A approach to discuss: what a class action is; how they are commenced; how they are funded; their recent history; the types of claims which are being brought; and
the main issues and trends with regard to their future.

How the law is made in Australia

Visit the Parliamentary website to read about how laws are made in Australia, in particular info sheet 7: “Making Laws“.

Specific NSW support and lobbying sites

 

PPS Note that aworkcovervictimsdiary is based in Victoria. Our knowledge of the intricate details of other state legislation(s) is therefore limited.

 

[Article by WCV and WCV3]



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13 Responses to “What are Class Actions really?”

  1. So who did you say funded this site?
    Some how I think there would be more than 7 people who are victims
    of QBE’s illegal practices. I don’t believe there is nothing that can be done to bring them to account for their actions. It was governments that gave them the power to bully and abuse injured workers in the first place. I did what I could to bring them to account as one person with a certain degree of success but nothing will change because injured workers are worth nothing and the truth is just covered up. I did get some useable information from this site but in the back of my mind I questioned this site and the motive behind it. In the end the only trust worthy person is oneself. I will never trust another employer, I use to love this country – I hate it now.

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    • HI Just Me ,I here you I have a few posts on here all about QBETMF,I have been to HELL and I am still trying to live on some days .But as I said JUST ME, its YOU CAN ADD plus 1 LOL.. JUST ME, lets face some harsh sad and truth full facts here, Australians look down their noses at us thinking we are all a pack of lazy fraudsters , while the insurance company’s and so -called IME’S are the real fraudsters. THE VERY PEOPLE WHO ARE RESPOSIBLE FOR DUTY OF CARE AND SUPPORT CHOOSE TO IGNORE YOU. Independent medical doctors if you can in all truth call them a doctor at all, they take an oath ,but its just another piece of shitty paper for some of them they are not a real good doctors arse. back to what I was saying insurance doctors (see above) rehab service provides case managers and said bosses the list just keeps going ,they all preform to please the hand that feeds them, the report will favour the person paying the bill and lets get this in BLACK AND WHITE AND TRUTH, they get up to $5.000 its big money and the FACT IS WHO GETS PAID BEFORE YOU DO THE JOB??????????????? WELL WE ALL KNOW THAT ONE THEY DO IMES ,and lets face more facts if your no preforming well you may only get a small amount of $2, 000 naughty boys , and lets get it clear we all READ IT HERE the case when TWO DOCTORS GAVE TWO DIFFERENT REPORTS AND THE INSURANCE COMPANY TOLD THE DOCTOR WHO GAVE A BETTER REPORT TO CHANGE IT TO MATCH THE BAD REPORT. Lets all FACE SOME FACTS, most if not nearly all reports and this is EVERY STATE, THE INSURANCE COMPANY HAS A DOCTOR POOL, AND YES THEY USE THEIR TOP HARD HITTERS TO RAILROAD YOUR CLAIM ,of course the report will favour the person paying the bill the bigger paid doctor tells the insurance company what they want to hear WHY???? because you don’t bite the hand that feeds you !!!!!!!!!!!!!!!!!! .We need to put an END to the RAMPANT FRAUD and CORRUPTION PERPETRATED UPON US AUSTRALIAN INJURED WORKERS !!!!!! BY THE INSURANCE INDUSTRY AND THEIR LEGISLATIVE FRIENDS THIS IS GETTING OUT OF CONTROL , I GOT THIS NEXT BIT FROM THIS SITE IT IS BLOODY TRUE THE INSURANCE INDUSTRY THAT HAS OUR LEGISLATORS PIMPING AND PANDERING INFLUENCE IN EXCHANGE FOR THEIR POLITICAL CONTRIBUTIONS ( THIS IS MY BIT) OR LIKE THE CHANGES IN N.S.W. THAT WAS DONE AFTER MIDNIGHT WITH THE SHOOTERS PARTY VOTE TO WRECK WORK COVER AND YOU CAN SHOOT IN THE NATIONAL PARKES DOES ANY OF THIS SEEM RIGHT ???? .THIS IS A DISGRACE AS AN AUSTRALIAN AND A VOTER. WE ALL NEED TO BAND TOGETHER AND MAKE PEOPLE LISTERN TO OUR VOICES ,WE NEED TO STAND UP AND BE COUNTED WE NEED TO FIGHT TO SAVE OUR OWN SANITY WE ARE FIGHTING FOR OUR LIVES PEOPLE WITH FREQUENT VERY BRUTAL ABUSES OF A VERY ADVERSARIAL WORK COVER SYSTEM . THESE LIVES WE ONLY EXCIST IN .WE ARE NOT LIVING, WE ARE NOT HAPPY AND FOR SOME OF US WE COMPLENTATED SUICIDE.IT DOES NOT JUST AFFECT OUR INCOME ITS RELATIONSHIPS,STRESS,ISOLATION,DEPRESSION,ANXIETY OTHER MENTAL ILLNESSES PAIN 24/7 HUMILIATION,OUTRAGE,OFFENED,FRIGHTENED, DISGUSTED OVERWELMED, PANIC ATTACKS LOSS OF SLEEP ,LOSS OF SELF ESTEEM !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!WAK,E UP GUYS WE,US NEED TO DO SOMETHING HOW MANY MORE OF US WILL DIE ????????????????????????????????????????????????????????????? PLEASE TELL ME SOME ONE PLEASE I AM LUCKY I AM STILL HERE , BUT LET ME TELL YOU I DIONT FEEL IT,HOW INGODS NAME ARE WE EXPECTED TO SURVIVE PLEASE SOMEONE OUT THERE TELL ME PLEASE .BECAUSE TRADICALLY, SOME INJURED WORKES DO COMMIT SUICIDEAS A RESULT OF IME’S REPORTS AND TREATMENT FROM YOUR CASE MANAGERS ,PYSCHIATRIST IME’S ARE QUITE RUDE,PROVOCATIVE,UNCARING AND TOTALY UNFEELING THEY JUST DONT CARE YUO !!!! ARE A FAST BUCK TO THEM. I WOULD ALSO LIKE TO BE TOLD WHY WE CAN NOT PUT A RESTRAINING ORDER ON YOUR BULLING ,HARASSING AND INTIMIDATING CASE MANAGER. TO END MY LONG POST I WILL TELL YOU IF MY CASE MANAGER HAD NOT STALLED MY KNEE REPLACEMENTS I WOULD NOT BE IN THE SYSTEM IT TOOK 2 YEARS TO GET ONE KNEE DONE AND I HAD TO USE MEDICARE BECAUSE HE WANTED A LETTER FROM THE SCANNING TO EXPLAIN TO HIM WHY I NEEDED IT AND WHY SHOULD THEY PAY ,EVEN THE SURGEON GOT THE SHITS ,THE FACT IS THE KNEE HAD TO BE MADE IN BELGIUM AND THE DOCTOR SAID IT IS NOT UP TO THE GIRL AT SCANNING TO SEND ANY TYPE OF LETTER ,SO HE RANG BWRAL AND THEY BULK BILLED IT BECAUSE JUST THIS BIT HAD ADDED ANOTHER 6 MTHS TO MY OPERATION AND I WAS NOT IN A GREAT FRAME OF MIND,I WENT FROM BEING SO HAPPY TO GET BOTH KNEES DONE AT THE SAME TIME TO JUST NOT CARING ANYMORE THANKS QBETMF YOU REALY KNOW HOW TO PUSH US OVER THE EDGE YOU SHOLD ALL BE HAPPY AT WORK NEXT WEEK AFTER WHAT THIS POOR MAN DID LETS FACE IT FIRE MY GOD I CANNOT EVEN THINK OF WHAT STATEOFMIND HE MUST HAVE BEEN IN AND YOU CAN FORGET LIFELINE WHY????,BECAUSE WE SAY NOTHING TO NO ONE, IT WHAT GOES ON IN YOUR MIND ,TOTAL BLACKNESS, YOU SEE NO LIGHT AT THE END OF YOUR TUNNEL ALL HOPE OF THE LIFE YOU HAD GONE, MONEY GONE,NO ONE NEEDS YOU, AND YOU WITHIN YOUR OWN SELF SEE NO WAY OUT, AND ITS THE FEELINGS OF YOUR HEART WHEN YOU SEE THE HELPLESSNESS IN YOUR PARTNERS EYES THAT THEY CANNOT TAKE THE PAIN IN YOUR BODY AND MIND AWAY, LASTLY YOU FEEL SO USELESS HELPLESS EVERYJOB IN THE HOME TAKES AGES IF YOU DO OVER DO IT YOU ARE USELESS FOR TWO OR THREE DAYS AND THE PAIN . HOW MANY MORE WILL SELF HARM OR COMMIT SUICIDE BEFORE ANYONE IN THIS COUNTY WILL HEAR US IT HURTS MY HEART TO THINK NO ONE CARES ABOUT US GOD BLESS US THATS ALL ANY OF US HAS.

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      • @Suzanne, I hear what your saying.
        BUT, one must take baby steps. I would love to march on Parliament house and make my voice heard.. When it happens it must be the voice of the majority not the minority. There have been attempts to have meetings, but you never know who may turn up.
        I stay focused on my kids, They are why I am still here, they are the ones I am fighting for, why should they have to miss out on life because of the stupidity of someone else… My accident has left us with pretty much nothing, the family home is now on the line, because Abbott passed some crap through legislation regarding the calculation of Income Protection payments reducing sickness benefits… For me its @ $40 less per fortnight, but when one factors in what I was earning to what I get in payments now… I’m at less than 50%… The income protection doesn’t even cover the mortgage, I’m left with about $90 per week to pay bills and contribute to the groceries.
        I wanted to remain at work even in a reduced capacity, but it isn’t to be. I hate seeing the disabled sticker on the windscreen, and I hate having to apply for disability pension, but I feel like I have no choice.
        At first I thought to downsize because my kids don’t play outside anymore, we don’t need a yard, but even that is near on impossible, which bank would allow me to have a mortgage now. How do I get a rental when I don’t have income. Whats the wait list for public housing?
        I think I can say for most on here, ending it all has crossed our minds, or some may have attempted, why let the insurers win… Its not easy to keep going, to continue to jump hurdles but its what we must do. Our families suffer with us, they shouldn’t have to suffer our loss un-necessarily.

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    • @Just Me
      This site is funded by the one and only aworkcovervictim (awcv)…. Its up to you if you wish to post or ask questions. There has been a lot of activity lately and awcv has been back in hospital, others do watch the site (admins) but as with you and I all have their own issues as well.
      There are many levels to this site, you should check up the top menu to see more about this site.

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  2. @Just Me, what state are you in? I’ve battled QBE and been successful on a few counts. Unless people are prepared to share with others though, they will always have the advantage. I agree that people need to unite and fight. They get away with so much bc most of us are uneducated in their systems, strategies and the Law. They bluff, bully, harass and manipulate to obtain financial advantage by deceit. I’m in Vic and I had a quick browse of the ACA only to find it pretty much devoid of anything in relation to the health and welfare of injured workers, it’s about making money and minimising liability. It’s a joke to have these corrupt morons managing us and supposedly policing themselves. Anyone in VIC thought of contacting IBAC?

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    • Hi, reading this section and I agree. Unfortunately I too have became a Victim of both Australian Govt Policy and QBE. I blame the Government more than I do the insurers.
      As in my case, QBE are worse than Bastards but they are a business and the Government when legislating policy’s, knew who they were getting into bed with. The laws really only protect the interests of big business and not us. Pitty we are precluded from suing the Employers directly. Albeit the attitudes would change if these pricks were held responsible in a real way.
      Anyway to the point. I don’t give a shit about changing laws, as we will always be the underdog. That’s just how it is . But quite a lot of my issues and I guess that of many others, is poor interpretation of laws. Corrupt IME’s and of coarse insurance Co.
      I put it to you, if serious. Contact me through this page (or anyway), that goes for any W/C Victim. Especially those dealing with QBE. Lets take action, anything from Media to Legal. I would even consider actions under international Human Rites Laws? Anything to get these Bastards. Make them sit up and listen. Then screw them for past wrongs. (point to note. Any disparity in Law between different states. The Constitution, clearly States that this is unlawful and is to benefit the Citizen, not the State. Lets take advantage of the best and differences in these corrupt Laws)

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  3. I’m lost for words really. I still don’t trust this site 100%. Most of the time it feels like workcover, insurers, employers, pi’s etc are really the responders here. I turned up to the Injured workers support network meeting once – they seem to be genuine. So am I the only one who feels this way on this site? If this site is genuine, then i apologise, if not, well then…….7 months after the closing of my case I still get survielled, so that’s pretty interesting. It’s astounding how much money is being wasted on surveillance, yet terrorist are going unnoticed. Mmmm, it’s a strange new world we live in now. As for the insurance companies, sooner or later the governments will have to accept the insurers are not capable of running their own game and must be reigned in.

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    • @Just Me – I am the one lost for words really and feel deeply insulted. What do you think we (aworkcovervictimsdiary) are? Honestly? I am mortified when WCV (Lisa) wil be reading your comment.
      Have you got any idea to what lengths we’re going to provide help to countless injured workers? Seriously injured ourselves (Lisa back in hospital by the way). What is there in it for Lisa and aworkcovervictimsdairy’s co-authors? You tell me/us? WHAT do WE GAIN from running this site, apart from costing money (which Lisa pays for out of her own empty pocket) and insult to injury? Why do and did we risk our own claims by blogging about a fully sick system? Ever thought about why Lisa’s picture is on this site? Why did Erin Brockovich visit her? Gosh I can’t believe what the heck is going on on this site!
      By the way did the injured support network (NSW) ever tell you how they managed to get credibility? ASK them and you will find that it is thanks to aworkcovervictimsdiary! Did you know that they RUN a business? They run a rehab service (workcover registered) for injured workers.And you question aworkcovervictimsdiary’s credibility. My goodness.
      I am becoming sick of going out of my way to try and help injured workers, if that is what I get in return. It is so demoralising, it’s not funny.

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      • Workcovervictim3,please give Lisa my love and hope she gets out of hospital soon xxoo

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      • @ WCV3- Like you I am shocked and upset by the way that some people are carrying on at AWCVD. It is a disgrace! It has me thinking that just maybe there is too much help and real info here. This site is a very REAL threat to the entire WC system and all the corruption involved. I think this is becoming a Troll War against the genuine WC Victims and AWCVD. It saddens me to see legal advise being attacked as well as other help. This is why I have never asked my “Lawyer Mate” to jump on. S/He would be very unimpressed with the attacks that are now happening. Even I was slagged off over my surveillance drone question by what I labeled as a Troll.
        So my two cents worth, for those reading, is:
        If you don’t like it, don’t trust it or don’t believe it then why don’t you just p*ss off!
        This site has saved many of us from the horrors of isolation, suicidal thoughts and desperation.
        WCV3 please pass on my best thoughts to WCV while in hospital- sounds like a really rough time for her.
        MadChef

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        • Advice from my “Lawyer Mate”. When requesting info from Insurance company ALWAYS specify a time limit for responses. Remember if quoting FOI Act they can take up to 45 days. HR Act requires a response in 14 days. Choose which act you need to quote.MadChef

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        • MadChef, it is my choice to visit this site. I believe I am entitled to my opinion, are you saying I shouldn’t I be allowed to question?

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      • WCV3, I understand you taking offense at my questioning of this site. But why would you be so supprised? We’ve all been put through the wringer from insurers. Perhaps it is the workers comp system to blame for my scepticism? There are not too many injured workers on here showing their true identities apart from myself – why is there so much fear about that? I am an innocent injured worker, I will never fear them, I don’t care if I am recognised, and I will speak my mind without fear. There was no intention to insult, or question the work you and others put into this site. As far as the IWSN, I agree with you, they don’t appear to really be doing anything, it will be interesting to see what comes of the Fred Nile involvement. But I won’t hold my breath for anything too positive.

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