The workcover system is, in my seriously injured opinion, designed to do one thing and that is to remove all “responsibility” from the injured worker, and alas, remove all control from the injured worker, which –all too often– leads to desperation, frustration and a myriad of secondary psychological injuries.The following somewhat controversial article aims to make injured workers think hard and show a potential way to stay in control of their claim.
Should injured workers take more control?
The harsh reality is that injured workers have no say during the life of their claim, or at least, until settlement has been reached.
Once the (more seriously) injured worker ends up on the workcover system, and worse, in litigation for example for a serious injury certificate or for a common law damages claim, just about all semblance of control over the injured worker’s destiny is taken away! From being told what doctor to see, what medical treatment can or can not be approved, what surgery they must or cannot have, how much home help they can have, when weekly payments cease, whether they
can must return work, what type of work they must do, and even what ‘activities’ they should or should not engage in (think surveillance) etc.
Have you ever thought about staying in the driver’s seat and in control of your workcover claim, treatment and return to work?
Although there are jurisdictional time limits to bring a workcover claim, there is –arguably– some time to bring a claim at the end, and– more importantly– for some, it can even be done when ‘it’s all over’ and/or when you have returned to work on your own terms.
So, I was thinking that we, injured workers, or at least some of us, have the option to be a little bit more strategic and stay in charge of our workcover claim, injury and even return to work.
Let me explain. For example if you’re involved in a car accident (TAC), once you make your claim, you basically give your insurer the right to control you; your insurer will decide what is to be or not to be done, and it can get as far as being allowed to sell your car back to you if you don’t want it to be a write off. Well, our workcover insurance system is exactly the same, it operates in the same way. Once you make your workcover claim, your insurer, as well as your employer are basically legally entitled to involve themselves in your (personal) ‘business’. Your workcover insurer (e.g. case manager) will start to literally dictate how, when, what and why’s! And your employer also gets to be in charge, largely together with its agent, the workcover insurer, to which your employer pays premiums.
Once your workcover insurer (and employer) start taking control of YOU (the injured worker) the all-too-familiar nightmare begins. From being told what doctor to see, what medical treatment can or can not be approved, what surgery you must or cannot have, how much home help you can have, when weekly payments cease, whether you
can must return work, what type of work you must do,etc. Suddenly your own doctors and specialists’ opinions are no longer ‘valid’ or ‘important’; you now have to see their shrink or other IME specialist for a ‘better-in-favour-of-the-insurance’ opinion. Most of those IMEs will obviously think, opine and manage you based on your employer (and insurer) version of your medical history, not yours!
Consequently, some horrible things happen … such as IME reports consisting of a ‘pack of lies’, facts are twisted and taken out of context. This reminds me of a story I heard not long ago from an injured worker who was sent to an IME psychiatrist re a bullying claim. Apparently the IME shrink had said to the injured worker something along the lines of “… I bet you feel like killing those bullies for what they’ve done to you..”, to which the injured worker merely grimaced. But, yes,you guessed it right: The IME shrink’s report came back with something along the lines of ‘she raised her arm and made a fist at me, yelling she would happily kill the bullies’.
As anyone who has been trapped in the workcover system will tell you;
for little or no reason but for the money they get paid by workcover. I believe the harm caused is even greater when you suffer from a psychological injury (e.g bullying claim), which is not visible on x-ray (if you know what I mean).
So, how can injured workers -potentially- stay in charge?
I acknowledge that it is NOT always possible for an injured worker to ‘stay in charge’, especially in cases of (more) serious physical (and even mental) injuries. However, if you have for example suffered or are suffering from a mild to moderate psychological injury, for example, by bullying or whistle-blowing at work, I (and we) believe you have the real option to stay in the driver’s seat and to control your own well-being.
Remember that psych injuries are the most difficult ones to claim and to defend. Many psych injured workers are made a thousand times worse by being on workcover.The laws have gotten stricter and stricter on filing psych 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. (see our painfully blunt article:Stress claims: Workcover or a separation package?)
Tips to stay in charge when suffering a minor/moderate psychological (or even physical) injury
- First of all get a good doctor. Keep your doctor fully updated about your symptoms and, where applicable, what is happening at work (should you still be working a little)
- Use your own leave entitlements: Some injured/ill workers could use their own leave entitlements (sick leave, annual leave etc.), at least to start with. If you do, then you, together with your treating doctor(s) can stay in charge of YOU. Your employer can’t really make you see anyone else (such as an IME) without your consent, and, what’s more important, your employer has to follow your treating doctor’s instructions (such as restrictions, ergonomic aides, number of hours to work etc).
- Medical certificates: All your medical certificates should provide details of your symptoms
- Diary: record everything that is happening, such as for examples your perception that your employer is trying to sack you (e.g constructive dismissal etc). Keep evidence (incl. all emails, notes about telephone conversations etc.)
- See a Psychiatrist and/or Psychologist: If you suffer from psych injury obviously ensure you get a referral to a decent psychiatrist or psychologist.Ensure you and your treating doctors (incl. psychologist) keep a detailed record of what’s going on at all times.
- “Closed Period Workcover claim“: After you manage to return to work, or decide to leave your (toxic) workplace, you then can file what is known as a ‘closed period’ workcover claim!
The advantages of a Closed Period workcover claim
A “Closed Period” workcover claim is essentially for a set period and for a claim that is made after the facts. You can still claim for all the normal benefits such as paying back your leave entitlements you may have used, all reasonable medical and like services costs to treat your injury, and even compensation, if you’re eligible (i.e lumpsum, settlement). Note that each state has its own set ‘closed period’. For example, in NSW it is 2 months (8 weeks).
By filing a ‘closed period’ workcover claim, YOU basically stay in total control of your health and well-being, and you return to work (or not) on your own terms (in tandem with your treating doctors). You’re not harassed by your workcover insurer, case manager(s); you are not ‘doctor shopped’ ( = sent to numerous so called independent examinations) and you are not told what, when, how and why.
The best reason of all to file a “closed period” claim is that you will have the only record – and the best record- of your injury, the facts surrounding your work injury and nothing will be conveniently ‘twisted’ by workcover IME and their stakeholders such as IMEs, Case Managers, Rehabbers etc. (and/or your employer).
It is also possible in some cases to lodge a closed period claim when you chose to retire on medical grounds. You basically use your leave entitlements upfront and simply claim them all back when you actually leave work.
This is probably the only way for an injured worker to stay in control for as long as possible.
If you have sustained a work-related injury, you may be required to take time off work and receive medical treatment. If you expect to be reimbursed or compensated for these expenses by your employer and their insurer, you must lodge a claim for workers compensation. An injured worker cannot be forced to lodge a claim. However, injured workers must be aware that failure to notify their employer of an injury or failure to make a claim for compensation within legislated time periods may jeopardise their entitlement to compensation.
[Post dictated by WCV and manually transcribed on her behalf]
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