Workcover is a disease – injured workers are dying from it

workcover-disease

‘With all the obvious and sometimes deadly symptoms, there has to be some kind of disease [within workcover]’ said an injured worker recently. Everyday we hear from injured workers and at times dread reading their stories. Sometimes we receive 10 emails from badly treated injured workers  a day. in the same or more serious situations. Did I say 10? Sometimes it’s 20. And the sheer number of badly treated injured workers means not only is that there something clearly wrong with the workcover system, but that it is systemic.

Workcover is a disease – injured workers are dying from it

Not only do we read many stories from badly treated workers, but we also scan social media and pick up even more evidence that the workcover system, or being on workcover is sick(ening). One Tweet read ” WorkCover kills people”; another aimed at workcover states  “Take out the ear plugs u might c & hear ppl crying for help.”

Recently an injured worker described herself as a “crucified injured worker” and that “insurance companies treat injured workers like criminals.”

Another spouse of an injured worker told us that her husband killed himself and added that “If injured workers don’t go into (the workcover claims process) with a mental disorder, they are definitely coming out of it with a mental disorder.”

Countless injured workers have contemplated suicide whilst on the ‘system’.

Many injured workers write to us that the workcover system (in just about all states) needs to be reviewed, preferably by means of a Royal Commission.

A Victorian doctor calls WorkerCover Agent’s policies “appallingly disturbing,” saying it orders injured workers to accept particular treatments or lose their benefits”.

An injured worker told us he is finally scheduled for his recommended ankle surgery 3 years after his workplace injury, and only after he engaged a lawyer “It’s been a horrible mess even trying to get basic medical care, let alone benefits“, he wrote.

Earlier this month a seriously injured worker asked us if he could sue WorkCover (insurer) for at least $1 million. He wanted compensation for what he called a “journey of terror,” where the workcover insurer repeatedly denied treatment and surgery that his doctors had recommended. He is adamant that the workcover insurer “inflicted far more damage than the injury suffered in the workplace accident” and wants to be compensated for this “evil treatment.” Unfortunately, in Australia, WorkCover has no legal duty for how an injured worker is treated (by its agent / insurer) and workcover insurers conveniently are exempt from acting in ‘good faith’. Needless to say that if there was some duty of care, workcover authorities and their agents would be subjected to a deluge of lawsuits alleging negligence in the investigation, adjudication as well as the administration of claims.

Surely, the reason why our workcover insurer’s are exempt from bad faith implies fear that there would be an immediate avalanche of legal actions, and is an admission that there’s a serious problem in the workcover system, or?

Injured workers are under tremendous stress and living in pain. That alone does not explain just how compensation situations explode so drastically. And always with the same message: Time and time again, workcover insurance companies and workcover authorities are described as aloof, uncaring, bullying and arbitrary.

Here’s a message to the “professionals” who work in the field of workcover right across Australia, and the politicians who oversee them: With all the obvious symptoms, there has to be some kind of disease. And injured workers are dying from it.

 

[dictated by WCV and manually transcribed on her behalf]



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45 Responses to “Workcover is a disease – injured workers are dying from it”

  1. Hi WorkcoverVictim

    I am a lawyer in Western Australia, and at least in WA I do not believe that anyone could or should not be held accountable for behaviour that is in bad faith and that causes injury, including and especially by insurers (and their doctors). Speaking for myself I would not stand by and see any of my clients deteriorate health-wise without my taking the fight back to the insurer (and its lawyers), and by making the insurer aware that acting in “bad faith” is not tolerated by our administrative and legal system. I see no reason not to issue a Writ against an insurer or at least a complaint to the Ombudsman, and to also challenge the bona fides of a damaging and patently false medico-legal report. There are ways to undermine a dishonest medical opinion and the doctors who earn a living giving such opinions. With the right assistance we can make insurers aware that damaging behaviour is not permissible and no-one is above the law, not even insurance lawyers (although that would be a more difficult battle). In a nutshell – nobody should be above the law when it comes to accountability for emotional damage or other injury caused by the system.

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    Paragon (formerly ****88) May 13, 2015 at 8:30 pm
    • Well said, the problem also is fighting dishonest Lawyer firms.
      My “ex” Lawyer took advantage of my weak health conditions to push me hard into signing a before the Court agreement which was very very favorable to the insurer, that was done under duress!
      How can a mentally weak and honest person fight this biased and bully system is beyond my understanding.

      My answer to the thread mentioning the problem being a disease is: MONEY!

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      Xchangingvictim May 13, 2015 at 8:44 pm
      • Too many Workers Compensation lawyers will either milk your claim for all the legal fees they can get or else undersettle so that they can be paid quickly. Finding a lawyer who puts your interests first is a difficult task. Unfortunately lawyers have huge overheads hence huge fees. However, don’t think that a lawyer who has acted for you less than ethically cannot be held accountable (by another lawyer). This is quite doable in certain circumstances.

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    • @”Paragon” – Both myself and Workcovervictim (Lisa) very much appreciate your insightful comment. What we fail to understand is why nobody (that we know of) has ever been successful in claiming compensation from an insurer who acted in (gross) bad faith, or have had the insurer punished ($).
      Recently there was another legal case (NSW) whereby the Judge stated that the Workcover Insurer & IMEs behaviour was ‘disgraceful’ and ‘seriously alarming’. Apart from an ‘investigation’ into their conduct the injured worker did not receive any additional damages for this terrible insult to injury. We’re pretty sure that both the insurer and the IME got away with a slap of the wrist (and no $ penalty). Another landmark case also did not penalise the insurer as such.
      We also don’t understand why workcover insurers are exempt from acting in ‘good faith’ as is required by all other insurers.

      We believe that an injured worker can only obtain some ‘compensation’ if badly treated and make worse by the insurer, if the injured worker is ‘lucky’ enough to meet the criteria to proceed with a common law claim for pain and suffering (and economic loss), because in all likelihood the injured worker will have a higher % of permanent impairment as a result of negligence/bad faith on the part of the insurer (psych injury, worse physical injury). But that is not good enough because many badly treated injured workers often don’t even meet the threshold to sue under common law, and as such get very little or nothing for their injuries, incl those inflicted (or aggravated) by the way they were treated.

      In the USA, claiming that an insurer has failed to act in good faith towards its insured can result in large damages awards. While embracing the proposition that a duty of good faith and fair dealing is imposed by contract, the American courts also consider contracts of insurance to create a special relationship that gives rise to a tortious duty of good faith – hence exposing insurers to punitive or exemplary damages.

      In Australia, a duty to act in good faith exists as an implied term in all insurance contracts regulated by the Insurance Contracts Act (by virtue of section 13 of the Act). A breach of this duty of good faith results in a liability for no more than compensatory damages and does not create any potential liability for exemplary or punitive damages. The question of whether a tortious duty of good faith exists for insurers in Australia has often been raised – particularly in regard to policies not regulated by the Insurance Contracts Act.

      In Gibson v Parkes District Hospital (1991) 26 NSWLR 9, Badgery-Parker J concluded that there was at least an argument available that such duty existed but did not go so far as to find that such a duty formed part of Australian law.
      To date Australian Courts have generally resisted following the American line of caselaw based on the existence of a tortious duty of good faith owed by an insurer. On 10 August 2007, the NSW Court of Appeal has confirmed (in a case where TressCox acted for the insurer) that the tortious duty of good faith does not exist in Australia.
      In other words: Australia does not recognise the tort of acting in bad faith. Further, there is no term implied in a workers compensation insurance contract that the insurer must act in good faith….and that, folks, is one of the biggest problems injured workers have.-see: http://aworkcovervictimsdiary.com/2013/08/unfair-claims-handling-practices-in-workcover-insurance-no-tortious-duty-of-good-faith/

      So we’re very curious of how we / or decent lawyers can help injured workers who are treated with contempt by their insurers and who are made sick, or even those who tragically commit suicide from their “terror journey” on the system.
      Apart from a stern letter or 3 to he insurer by a lawyer with re to some outrageous or malicious behaviour (such as IME shopping, harassment & bullying, request no direct communication, request a non-biased IME) we have not seen or heard anything that a lawyer has been able to do. Can you help shed some light on this serious issue? Would be greatly appreciated.

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      • @Workcovervictim3 – Thanks for your detailed response. I will reply in full, but I would just quickly emphasise that the way I see it there is no way a plaintiff lawyer should stand idly by and see a client driven to suicide or self harm by the insurer’s conduct, and, were I to be armed with a psychiatrist’s report making a direct causal connection between the conduct and the harm I would undoubtedly use what I know of the Court system to make an insurer legally accountable. Given that such rules of law apply in most other areas of human interactions, no institution, even insurers, should be exempt from accountability for blatant bullying and deliberate harassment causing injury/harm. An apposite case, which would see medical (psychiatric) evidence brought to bear against an insurer’s defence of reasonable conduct is long, long overdue. The test of reasonable foreseeability as to whether an insurers’ bullying and harassment is causative of significant injury or harm would and should be put to the test. On the flip side, when the insurer’s high-priced lawyers go in to bat for their high-paying clients, this often scares off potential litigants. Also, most judges were once barristers, some with a history of defence work. Still…I believe this is something to be tested.

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        • @Paragon If an insurer was cautioned by treating specialists not once but several times that their actions may lead to suicide and continued harassing that person even after a suicide attempt to the point that they hired surveillance to sit outside their home the day after that person attempted suicide and continued to communicate with that person and by that I mean bait them after specifically being cautioned by doctors that they were to have no further communications with that person and that person who had no hospital treatment and was a complete mess ended up being deceived, humiliated and conned within days of that by the insurer and attempted suicide again would that be foreseeable?

          Sorry I know its cryptic please don’t feel obliged to answer if you don’t want to

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          • @d – In my opinion the short answer is yes. That conduct would be unconscionable, and the likelihood of harm or injury to an injured person caused by an insurer who has specifically been warned off by a treating doctor would be reasonably foreseeable. The legal system certainly doesn’t provide just solutions for all injustices, but there are limits to what should be acceptable behaviour before it becomes unlawful conduct and something proactive is done to stop and deter this sort of abuse.

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        • How are you? I have just email David Shoebridge to ask how we could go about proceeding with changing legislation or adding much needed legislation about workcover insurers BAD faith. I know it’s usually rich lobbyists that get their rubbish ammendments and legislations that suit the rich through but if a petition is needed to start the process, could we start one here? Awaiting reply hope he tells me how to start a legislation.

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      • The insurance companies may not be punished through the courts, However there is the good old availability of common law and the law of commerce.

        Commercial Liens are you friend and no judge has any power over them. a Lien can only be cleared by a jury of 12, or if the Lienee or Lienees pay out the Lien.

        it is an administrative process and can be time consuming

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    • It is so refreshing when injured workers get a chance to hear from doctors and solicitors with ethics. I really need help, car accident coming home from work in 2003, spinal damage to cervical, mid thoracic, jaw now has TMJ, tinnitus from that injury, double vision presumedly from the whiplash and 4 squashed disks in the neck alone. My kneecaps were knocked out of place also, I will be in pain the rest of my life. I have PTSD, but the insurer keep trying to get “I”ME reports to downplay my first diagnosis, in fact the insurers doctors were all contradictory as to what is happening to me. I was on 10% WPI from a doctor who told me more accurately about my injuries, even though he said I have a mid thoracic disc bulge from being thrown around and compressed from hitting the car ceiling and my sister and I violently smashed into each other. I dont know how we survived, we had sideon and head on at the part of the m5 that was 110 kms per hour.. I have no solicitor as my solicitor was disbarred and his huge company did nothing with my claim so I asked for my file back they were useless even though they advertise how great they are on tv. My neck injury has worsened, bilateral nerve impingement due to stenosis of the foramina causing radiculopathy. I am fighting for an operation they dont want to pay for and the “I”MEs have been heartless and damaging. My nerves are shot, I have lost my coping skills, continuosly feel I am in a fight and cant get out of it cause poverty and possibly homelessness will be the result when they obey barry water-to-wine O’Farrel and stop paying. All this damage and pain and I know I wont be compensated without real genuine help.
      I know you are in WA but do you have any friends of like mind in NSW, I need genuine help, the accident and workover system has ruined me psychologically and 12 years to wait for a neck op is medical negligience. Not to mention the convenient lack of laws to protect us against bad faith. I am so sad when people I know get suicidal and extremely depressed due to this sick corporate scheme. Are they ruining workcover to make more money with their “income” insurance? Only covered for 2 years even if permanantly disabled? I want control of my own life and to not forever jump hoops for corporations that dont give a damn about injured workers. Thanks again for the comments, we need more of your kind!

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      • @Kerrie
        Unfortunately chronic pain doesn’t warrant surgery… I am having a similar fight.. They assume that any injury we have should be healed after 6 – 18 months.
        I also have mid thoracic pain, and on the mri for my neck have disc damage at T2/3 yet nothing has been done for it. My initial area of concern was my chest, from the seat belt. No imaging was done on my chest, I have arm pain and muscle wasting in my arms, I also have cervical disc issues and facet joints causing problems. I also have low back pain, which has been rejected… In part this is pre existing, but I never suffered like this with any pain before… Quite honestly, I think I could say I handled labour much better…. I have usually had very good pain tolerance and guess it would have been so again had this not dragged on for so long. Everything has been a battle, I had to close my business, sell my car and now am in the process of selling the house. “They” don’t care that this is the last 30 years of my life going down the drain… Everything I have worked for just about gone… I wouldn’t ordinarily wish anything bad on anyone, but I find myself wishing bad stuff on people I don’t know… Short term, but just so they know what its like…

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        • So sorry woowoo I can definately relate, I coped with the pain better in the early days when the idiot doctor in emergency who saw us taken in by ambulance didnt check me properly and did no xrays or any scans and said “you’ll feel like a truck hit you for about 3 weeks then you will be fine” I believed the idiot! Kept hoping kept being told by doctors “just give it aw few more months the pain will go” I had a baby 9 months after my accident so my xrays never happened for a year then the damage showed “the neck damage is permanant, never lift again or it will be worse” I raised my voice at him cause I felt I had been so deceived intentionally or not could the ist doctor have just took precautions and scanned us after a massive mva? So they didnt treat me or tell me why I had pain then the truth comes out, the pain wont ever go, I was so angry! My neurosurgeon said a fusion is appropriate for my neck as it is multilevel so the fight goes on to do that even with that done my mid thoracic lumbar and knees etc will still be messed up but the neck is the most horrid struggle from headaches to needing to lay down at innapropriate times cause my head feels too heavy on a weak and injured neck. I just wish this was a humane and decent system …if only

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  2. @Xchangingvictim – if you are still within the time limit, look at whether there is any possibility of taking action against the lawyer who got you a bad settlement, especially if this was done while you were clearly under duress and there was some breach of duty of care by the lawyer. Lawyers who genuinely care about their clients sometimes don’t mind taking on one of their own if there is good reason. Maybe talk to a Plaintiff organisation who know the appropriate lawyers. You may not succeed in suing for damages (you have to know – it’s not easy) but it’s possible. Also, you can make a lawyer accountable for professional misconduct by reporting his/her conduct to the Legal Practice Board Complaints Committee (or its equivalent State by State). If the lawyer is disciplined take it from there – You will have been handed grounds to pursue the case! As for the current discussion as to whether insurers can be sued for “bad faith” (and I still believe they can be if their actions cause injury or harm), if insurers are untouchable (which they are not), lawyers certainly owe a duty to properly represent their clients and accordingly have to act ethically (this is why they pay high premiums for prof indemnity insurance).

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    • I would add a caveat to my last comment, which is: Be careful you don’t expose yourself to a situation where you become liable for your lawyer’s fees and the Defendant’s legal fees. Make sure your case is solid and your lawyer has your back. I would not thoughtlessly expose a client to such a risk if it was a serious risk.

      Most cases don’t go to trial, but some do. If the merits are good then discuss this aspect thoroughly.

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    • Thank you very much for your reply, I have nevr received any settlement from QBE. Each time an honest doctor says I was injured in the accident I get sent to those lying mongrel doctors who side with the rich guys. Even the reports supporting me from a very well respected brain surgeon were not listened to. I cant take telling about the accident over and again to these rogue doctors, I am sick of the lies and disrespect injured workers get because the insurer (conflict of interest with insurer responsible for your recovery while treating you less than human with “I”ME bias. Some of them are consistantly trying to wrongly indicate that people are malingerers etc, have had a couple of those amongst the Ime nightmare and it is so insulting and wrong. I have had many breakdowns because of this on top of the trauma I have to keep reliving so those jerks can write lies about me and not assist me to get treatment for my spine. I need those nerves in my neck to not be leaned on by prolapsed disk and boney foramina stenosis in the exit from the spine where the nerves are needed to have room and not be leaned on due to the injuries but here I am 12 years in andterrified of when they will cut of my pay thanks to mr lie to the ICAC O’Farrel. He should be accountable for the damage and extreme distress he has caused a group of people that already get gaslighted by the system. Thanks again for your words and advice. My first lawyer took on my sister (who was in the accident with me, settlement years ago with similar damage) as well as me and due to her being passenger ripped me off basically, there is a CARRS report saying so. If I ever got a payout he would want pay out of it. No wonder we are so depressed we are screaming for help and they aint listening.

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  3. Me thinks Paragon is not really … [ADMIN: DELETED – TOO OFFENSIVE REALLY].

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    • “Injured” – Maybe your lawyer is not really a lawyer, and is part of the problem. I’ve been practicing for the past 20 years, and I don’t take kindly to being insulted as having no “knowledge of the law”. I stand by what I say as I have achieved exactly what I stated could be done. My firm has had legal actions against lawyers for overcharging and under-settling. Perhaps your lawyer is being too precious about the system and those who operate with impunity within it, himself/herself included. Your insulting post does you no credit.

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    • @Injured & Bullied – I can personally attest that “Paragon” is a real lawyer and does work in the field of personal injuries (workcover claims). Try not to be overly paranoid, for “Paragon” has in fact highlighted some accurate and valid points. Re-read his/her comments carefully. And be grateful s/he is willing to provide us, injured workers, with free legal guidance.It is utterly unacceptable to write such accusatory comments implying that Paragon is some sort of imposter – this will render his much needed (YES!) opinions ineffectual. I am shocked that this lawyer who is willing to give us free legal advice (pro bono) is insulted by the very injured workers I (and we) are trying to help. I can’t overlook the appalling criticism and “Paragon” certainly does not deserve the stress of being reviled.

      As per our comment policy note that Diary of a Workcover Victim is an “injured workers friendly site” therefore any comment that includes offensive or inappropriate language, and/or considered rude by fellow injured workers and/or by our editorial staff or any valuable contributor for that matter will be edited or deleted.

      As such your comments have been edited / deleted – they’re just unacceptable to me and countless other injured workers who are extremely grateful to have “Paragon” on board, a real lawyer with vast experience, not our for self-promotion, but who genuinely wants to help and is determined to prevent such bad treatment by insurers towards his own clients – injured workers.

      Please refrain from making any further very insulting and most inappropriate comments towards “Paragon”.

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      • workcovervictim your comment is a bit over the top and almost hysterical, don’t you think

        personally i take everything read on the internet including whom people claim they are or arent with a grain of salt. In the anonymous world of the internet you can hardly expect people to accept or believe everything without question. Anyone that believes everything and everyone one on the internet is probably not very wise.

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        • @CGUSux I think I made a very valid comment whether you like it or not, and yes I was furious reading that the lawyer I invited on site may be ‘fake or an imposter, or not real’. I am trying so hard to make a genuine difference to injured workers, and this includes my attempts to find compassionate lawyers who are willing to provide us with some free legal guidance on site. Obviously when this lawyer offered his/her knowledge and was seen as non-real lawyer this made me mad, because I (as the site’s owner & founder) am utterly embarrassed and ashamed that this genuine lawyer gets treated with suspicion and what-not. It is humiliating!
          Everybody is entitled to their opinion about anything posted here but I believe a far better way to address for example your ‘suspicions’ (if any) would be in a constructive manner – for example by having a discussion on what exactly another lawyer said about what exact comment/phrase made, and take it from there. The laws are extremely convoluted and complicated to understand as non-lawyers, our own lawyers do not (always) look after us the way they should or could, and are not always honest, because some of the alternative options we may have are time consuming, perhaps drawn out issues, sucking too much time (and money) from the average personal injury lawyer.

          Over the years I have myself been (c)overtly accused of being a ‘spy’, of working for workcover, and such nonsense, by certain people who don’t even know me, and by those who may not agree with a certain comment/article/advice. Do you know how painful and demoralising this is? Sometimes when I fail to reply to some injured worker’s email in person, I may get an extremely insulting reply, accusing me of all-sorts. This really hurts terribly, and if it wasn’t for the majority of injured workers being so supportive of my site (aworkcovervictimsdiary) I would have long given up trying to make a difference.

          All I am asking is to show respect for this lawyer, as I stated I know for certain that s/he is very real and keen to help us by parting with some much needed legal guidance, where s/he can. It would be a huge asset to have a pro bono lawyer on board, as at this stage I/we can only tap into very limited legal resources (incl. 2 very busy lawyers) to help answering more legal-es questions by our injured readers.

          I hope this explains my angry comment.

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          • @WCV-I completely agree with your comments over “Paragon” (offering much needed help). The attacks are just another side effect of the sick WC system, creating too much paranoia amongst us. My “lawyer mate” has offered me plenty of advice (which I have posted when possible). I had great joy in telling him recently just how many people on this site had viewed his advice on Health Records Act(getting your info). He was really really happy that it had help others and that I had taken time to let him know. Like you, I would be very upset to think that this help would be recklessly tossed away. If some people on this site are suspicious then don’t interact with “Paragon” . You may find “Paragon” more helpful and reliable than the lawyers we have all signed up with. My “lawyer mate” has outperformed my “paid legal help” many times over, with far more caring, compassion and genuine concern. “Paragon” may just be another gem in this dark sicko trap we are in. If readers not sure, compare the advice with your “paid team” (if they can be bothered to get back to you and actually ADVISE YOU).
            WCV I think you do an outstanding job with this site and you would have saved many from our darkest days. WCV you DO make a genuine difference- where the hell would we all be without AWCVD?? I believe this site is such a vital asset, to all workcover victims, that it SHOULD receive state funding!
            MadChef (in solidarity with WCV)

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            • @Mad Chef – THANK YOU – again it is people like you who keep me sane, and keep me (and aworkcovervictimsdiary) going. Really appreciate your empathic support!

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          • Although WCV’s initial comment definitely comes across as harsh -and unusual for her warm & gentle nature- I fully understand her position and reason for being so upset with the 2 antagonistic comments made about the lawyer’s credibility. It is certainly very disheartening. I would personally also be mortified if I had managed to engage a valuable person, such as lawyer “Paragon” , any ethical doctor or any other valuable person (e.g PI, decent case manager etc) only for that person to be ‘insulted’.

            I am apologising to “Paragon” on behalf of those ignorant few who insulted him/her for no good reason whatsoever. And I sincerely hope most injured readers really appreciate the value “Paragon”(can) bring to this forum/blog.

            As WCV stated a constructive approach would go a long way rather than just making assumptions.

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            workcovervictim3 May 19, 2015 at 11:33 am
          • truth faith hope

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  4. @Paragon I have to admit I read some of your comments on here and I ….[ADMIN: DELETED – TOO OFFENSIVE REALLY].

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  5. Really glad you found a solicitor who wants to help and hope he is not too disheartened to keep doing this favour very much appreciated

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    • Me too, bloody hell I so hope that “Paragon” (the lawyer) hasn’t taken those 2 pathetic comments personally and will stick around. I think you guys are totally amazing and I truly appreciate your efforts to make a difference to us. You did to me! If it wasn’t for AWCVD I would have topped myself, and I don’t say this lightly. You saved my life. As for SCG8688 I am also extremely grateful that you’re willing to give us some free legal knowledge and pray you will stick around, please.

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  6. @Paragon (former nickname *****88)- Firstly Hi and thanks for being here.
    Am I asking my lawyer the wrong thing?
    I have a TPD IME appointment coming up. Yesterday I asked my lawyer repeatedly whether attending this is in the best interests for the claim, (As I have more surgery scheduled 2 weeks later-#4). Each time I asked this -rephrased many times- I was told, “well what do YOU want to do/ what would YOU like to do”. I thought I was paying for ADVICE??? WTF. As I explained to the Lawyer I just want the best outcome and the least amount of stress. I was still asked What I wanted to do????!!!!!!!!! I’m paying for this and they are going to take a massive chunk after all said and done.
    I have my lovely “Lawyer Mate” and s/he would say things like, “in the best interests of the claim” etc. It’s a bugger my “Lawyer Mate” is away at the moment. “Paragon” do they answer questions with questions and NOT advise you to remove any liability from their firm? I am beginning to feel very much on my own again battling Goliath!
    I am not able to leave them as I could not pay for the disbursements (I am paid less than $250 pw) which is a bugger as Shine have opened an office down the road from current lawyers. Any thoughts? Thanks, MadChef

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    • @MadChef – I am not sure if SH8688 is still willing to offer any of us with legal guidance after what transpired. I am yet to write an apology to him/her on behalf of those 2 commentators, and hope for all of us that s/he will come back!

      Now re your question, just a word of caution with TPD – if you are still on weekly pay from workcover and your claim has not settled yet, any monies you may receive from TPD will be seen as ‘income’ and affect your weekly pay (they will be suspended or stopped). This is grossly unfair because after all you paid for your own TPD insurance. Many people are not aware of this caveat. So it is in your best interest to wait to claim TPD until after your workcover claim is settled, if you want to maximise the monies.
      It is also much easier to claim TPD if your claim is settled and you ‘won’ compensation as all the paperwork, incl countless IMEs have been done and proved you are incapable of remunerative work ever.
      I don’t know if you are still receiving weekly pay or whether you’re on Centrelink ( Centrelink will also suspend payments if you obtain a lumpsum from TPD).

      I guess if your surgery will not make a difference to your work capacity then there is no reason not to go to the TPD IME.However if you’re likely to get better to the point of having some work capacity after your surgeries, I would postpone the lot. As inevitably ‘they’ will ‘speculate’ on how miraculously you will recover after surgery, rather than know the true outcome of the surgery(ies).

      Hope this helps a little.

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      • @WCV- thanks for the advice. I REALLY hope Paragon Stays with AWCVD. And no the surgery will not change my work capacity. I’ll sleep on it. Thanks,MadChef

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    • @madchef – I wrote a whole lot about TPD claims but didn’t answer your actual question. Suffice to say that managing a medico-legal claim is a tactical battle using the most effective doctors’ opinions at the most appropriate time. It is a battle fought and won, or lost, on the medical evidence. So yes, you should expect a lawyer to have views about appropriate timing of medical review and not just put the ball into your court.

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  7. Hi Mad Chef.

    Regarding your TPG claim – it would seem foolish of the TPD fund administrators to have a worker assessed by an IME before undergoing surgery, although this depends on whether the surgery will change your capacity and you say it won’t.

    A lot depends on what your treating specialist(s) and GP say about your disability. If there is ample evidence of TPD from your own treating doctors don’t let the administrators of the TPD fund mess you around. Pressure them for a decision, or at least get your lawyer to do this.

    I sometimes find it odd that a TPG superannuation administrator/trustee insists on arranging IME assessments when an unfavourable opinion from the insurance doctor would fly in the face of all the treating doctors who are supportive of your claim. Always press for the most reliance on the treating specialist who says you are disabled (ie from performing any occupation for which you might have been suited through experience, education or training in the foreseeable future… NB. it doesn’t have to be forever). Your treating doctors have more valid opinions which carry far more weight than any so-called “occupational physician ” hitman/woman. So why do they send you to such doctors? I believe that even facing the strongest claim, the insurer, or administrator, has to be seen to be going through the motions and this includes going down the IME path. I recently had 3 treating specialists state that my client had no work capacity for the foreseeable future, and yet the administrator still went through the motions of getting another insurance doctor opinion to challenge those of my client’s doctors. It seems to be a senseless waste of time and money.

    What I did in this situation was to draft a Writ of Summon, send the draft to them, and threaten to serve a filed copy on them if they don’t make their decision while the client is still breathing.

    Your lawyer must make it clear that the evidence allows for only one outcome. Don’t be shy to threaten these people with legal action for unnecessary delays and bad faith. I have done this several times, with positive outcomes, although it has never reached a courtroom so who knows…? Basically, the desired effect is to get them off their arses and make the determination. The advantage of this approach as opposed to w/comp insurers is that TPD insurers or trustees who make the decisions are not characteristically legally represented, so no insurance lawyers to hide behind at this stage. Your proactive lawyer can get things moving quicker. And bear in mind that this is YOUR entitlement to your insurance money that is the subject of the TPD.

    I have to add that many of these claims assessors are very nice people and polite and willing to take heed of any arguments. They are not like some of the worst w/comp insurers, at least I have found them to be responsive to niceness. One can be assertive in a nice friendly way. Kicking down the door is not the best way.

    On another point… I’ve never seen a TPD payout affect a claimant’s Centrelink income. This is not me giving legal advice. It’s just my observation. Phone up the Centrelink Compensation Recovery Dept to check this. My other observation is that TPD has nothing to do with workers compensation entitlements. It is an insurance policy for disabled people. I can’t speak for all States as there may be laws I’m not familiar with.

    @Mad Chef – Please let me know if there is anything more specific. I typed this message on my phone so it may be jumbled.

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    • @Mad Chef – Another point I forgot to make: it is true that without your lawyers paying disbursements, namely medico legal report fees, you would be in a tough spot. If you have a strong treating team and especially supportive GP it may be possible to get TPD opinions integrated into medical reports. Of course this is relying on the kindness of medical practitioners, but it is not impossible to manage a claim with minimal financial outlay. Also, you may find that the TPD fund administrators will be quite okay and agree themselves pay for an opinion from a specialist recommended by your treating GP. Ask them – you may be surprised to find that the adversarial vibe is less prevalent amongst them.

      As for my Centrelink comment, since there is contrary opinion on this please check what I said, especially when it is preceded by the words: “this is not legal advice”!! Just because a person is a lawyer it doesn’t mean that the entire legal system resides within his or her brain. I think I am right about TPD payouts, especially when they’re not huge sums, but I may well be wrong!

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      • @Paragon- THANK YOU SO MUCH. Your advice is greatly appreciated. I just got off the phone to my lawyers for TPD and asked them to reschedule the TPD IME appointment. They seemed more interested in me going (pre surgery) as they said it would delay the outcome of settlement ( and theirs). Unfortunately they did not seem at all concerned about having the IME before surgery- (I had thought it was strange if it is meant to be an assessment) and they have just tried to pressure me into going. Both surgeons have said that my career is finished (in writing) and after 30 yrs of it, my skills do not transfer to other jobs due to the nature of my injury. I have been told I will require more surgeries and total joint replacement (x2)- even after that, I have been told to retrain.
        I have spoken to Centrelink. Because I am only eligible for NewStart (Disability Allowance denied due to continuing surgeries) ANY payouts would cut me off, plus pay back any money received from them.
        My biggest concern is that I have a finally been given a GDN to go to Magistrates court re PIAWE dispute ( a 2 yr fight for that). Currently I am owed $100k+ in unpaid wages (If the PIAWE dispute is successful). And yes it does seem in Vic that WC cease payments- even though I think your point is valid and correct (wages vs TPD insurance). I feel that if TPD payout was issued then my chances of PIAWE hearing/outcome/back pay would be greatly jeopardized.
        I feel there is so much too loose and yet living in absolute poverty for 2.5 years- taking a TPD settlement would be my easiest option. Long term I would have probably screwed myself over just for the quick fix now. And then there’s the worry of TPD actual payment taking a long time to receive and in the meantime you seem to get cut off from everything. I can’t survive now, living on $0 would be impossible.
        Thanks Paragon for your info and for responding so quickly. I cannot express just how much it helps. Having good people like you around makes this fight just that little bit easier. Cheers, MadChef

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        • @madchef – you are most welcome. I hope this helps. I am perplexed about the TPD v Centrelink question as I have made specific enquiries from Centrelink on this issue and have found out that a TPG payment of, say $100K, will not affect one’s Centrelink pension. Again, this is NOT legal advice so please investigate this, or I will solve this question. I found that the problem with finding the right answer is that the Centrelink employee who takes your enquiry will immediately think “compensation” which DOES affect Centrelink payments. At Centrelink there appear to be very few people who actually understand the difference between a Compensation payment and TPD payout, so the automatic response you’ll get is, I think, that TPD affects Centrelink which I have found not to be the case. This is of course a major issue and I will look into it and get a categorical answer if you’d like.

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          • @Paragon- I think the Centerlink issue is with Newstart Allowence (since they abolished Sickness Benefit, everyone is forced onto NS). The case manager at Centerlink I have been dealing with acknowledges that there is “no place now” for us in the system and it causes us great hassle. With Newstart you are deliberately kept poor so as to force you to work. S/he said to me I would be better off on Disability but will constantly get rejected with pending surgeries. S/he acknowledges that we have been left to fall through the cracks. I think on Disability, a TPD should not affect weekly payments. With the new crack down on Centerlink recipients, I will have to ask a few more questions.
            You got me fired up to fight today so I have rescheduled my surgery (to suit me not IME), postpond my IME by at least 2 months and had some firm words to my lawyers. Thanks for the help, all the best MadChef

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      • @Paragon (formerly going by nickmane ***8**88)- thank you so much for your valuable guidance, much appreciated! Glad you’re still around!!!
        With re to TPD monies affecting (or not) workcover weekly payments, at least in Victoria I believe they really do. I also wanted to access my TPD a couple of years ago when I was in real financial hardship (weekly pay pathetic and reduced by 75% under the pre-2010 VIC legislation). My ‘decent’ lawyer did warn me that if I were to obtain a TPD payout, the money should be held in a trust fund (generally the lawyer’s) as not to affect my weekly payments, and released once my weekly pay ceased (claim closed). However, looking back at a comprehensive article we wrote (with legal input) the following is stated:

        Centrelink and WorkCover benefits

        These types of claims do not usually, but can impact on Workcover benefits, however if you have already received Workcover benefits then your entitlement to super insurance may be reduced as a result. In some cases you can receive both; it just depends on your policy.

        If you are paid a lump sum by your Super fund, your weekly WorkCover payments may stop for a period of time. How long they are ceased/suspended will depend on the size of the lump sum you received, the amount of your WorkCover payments and when you were injured.

        Because any money received from your superannuation can count as income, payments may affect how much you receive from Centrelink. You should contact your lawyer or Centrelink to find out what impact the claim will have on your benefits.

        So it could well be that my won policy is/was worded along the lines that any TPD payout would affect my workcover weekly pay.

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        • Thanks@ Workcover victim. A lump sum TPD insurance sum is arguably not considered at Centrelink to be” income”. Only the contributions component of the payout is and is subject to tax. You are 100% right in saying: Get your lawyer to check this or Centrelink directly, and make sure you speak to someone at ask at Centrelink who knows about compo. My personal view is not to be construed as me giving legal advice. It’s just based upon my experiences.

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          • Hi all, my understanding of all these payouts is that if one is compensated for loss of earnings then any monies received. From income protection and Centrelink has to be repaid. If monies received are not to compensate for loss of income then there is no repayment. TPD is affected by work cover/TAC payouts and is repaid. It is best to receive TPD post settlement from WC/TAC.
            My income protection is being paid based on my income at the time I ceased work, not pre injury. So because I did the right thing for me and tried to keep my business going, I have missed out on full income protection payments, even though my full income was covered by premiums. Even though I am still in the process I have been receiving Sickness Benefits, and since I am no longer able to work, nor have a job to go back to, I applied for disability, it has taken over 5 months and have just been advised my application has been successful. This is even though they know I have an application for serious injury pending.

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        • @ WCV- Why this all really sux big time is: if WC has incorrectly assessed PIAWE and are under paying you (by say 80%), then they will assess you TPD “income” based on what rate you are currently receiving. In my case that would force me to keep living well under the poverty rate (for Vic) for a further 2 years. How can that be fair?
          As for calling it “work cover benefits”, I have yet to see ANY BENEFIT in this bullsh*t system.
          Hope you’re doing well. MadChef

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          • I was told that work over payments weren’t included in my assessment of income….

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  8. Glad to see you stayed on Paragon very much appreciated:)

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  9. @madchef – If your application for a Disability Pension gets knocked back by Centrelink have you considered appealing this decision to the Social Security Appeals Tribunal (SSAT)? It’s not easy to win but taking this route has some definite advantages which I can tell you about if you’re interested.

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    • @Paragon- No I hadn’t thought about an appeal. I will reapply after this next patch up surgery. If I am rejected again I will definitely be asking for more of your advice. My GP has said he will also spend more time on the application to ensure it gets through this time. My Centerlink CM had said I am able to appeal but thought due to more surgeries they would keep knocking it back. Will keep you posted. Thanks very much, MadChef

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