After reading a recent comment posted by “Doug” stating: “I too suffer from mental health issues which have been aggravated due to a workplace injury, yet work cover do NOT want to even know about them”, I am compelled yet again to repeat today that when a worker is unfortunate to be injured at work, there is not only injury but it is then – just about always – followed by assault and workcover case managers (et al.) are re-injuring those workers all over again.
There is workplace injury, then there is assault by the workcover system
Recently another injured worker contacted diary of a workcovervictim to share her all too common work injury story.
An injured worker returned to “suitable” duties shortly after her injury, and whilst awaiting shoulder surgery (injury accepted as work related), however those “suitable” duties involved many two-handed tasks – resulting in the injury being aggravated and second new workcover claim lodged.
The injured worker, who had her claim accepted for her initial shoulder surgery, uses her own sick leave to attend medical appointments and took about 10 days sick leave to recover from the initial swelling and bruising of her shoulder. She is currently awaiting surgery and still needs to attend an “independent medical examination” requested by her workcover insurer. Because she works casually as a waitress (some days 12 hours, others 8 hours); she is pretty desperate to keep on working to make ends meet. She believes that because she has either injured herself, and/or is taking some sick leave for that injury, her boss has become angry at her. Or maybe it is because she decided to lodge a workcover claim, after having spoken to her doctor. Even though she has worked 11 years at the same cafe, and even features as the “employee of the year”, her boss now gives her the nastiest jobs and the worst working hours. She is in pain, on pain medications but still tries hard to undertake her allocated “suitable/alternate” duties, because she is the family’s only breadwinner and really needs the money.
The upmarket cafe she works at has a couple of security cameras in place. And, the camera takes video of the injured worker as she arrives for work, even smiling and talking to her colleagues and cafe customers. The video camera rolls when she uses her injured arm (at waist level) to carry a tray of dirty dishes and glasses…
Next thing, her boss and some obscure hired HR manager call her into the office for an alleged 6 monthly appraisal. But the minute she walks into her boss’ office, he begins to talk about her second workcover claim. She put in a second workcover claim after aggravating her initial shoulder injury, and as told by her doctor (and insurer – in her jurisdiction an injury aggravation means a new workcover claim). She doesn’t quite understand why her boss is talking at her about her 2nd claim, and politely states that she was under the impression that she was here for an appraisal only. Her boss becomes agitated, stands up and points his finger at her face, yelling that “she’s here for whatever reason he decides”. The boss becomes more and more agitated and states that she is aggressive to colleagues and even cafe customers and that she doesn’t understand the work (even though she has worked at the cafe for just over 11 years, has even been promoted several times and has her picture on the frame as employee/waitress of the year).
At the end of a one hour abusive tirade, her boss tells her that “he has her on video tape using her injured shoulder/arm” and that he “will let workcover know”. [WTF!]
After this dreadful “meeting”, the injured worker crumbles into a heap of tears, her colleagues see and hug her and…the all-mighty video camera films her in total distress too.
She scrambles out of the workplace (the cafe) and, too distressed to drive, calls a friend to drive her home, leaving her own car at the workplace parking lot. Her friend immediately drives her to her treating doctor as he is very concerned about her. Her treating doctor gives her medication, including anti-anxiety medication (Valium) and gives her a certificate of incapacity, refers her to a psychologist and advises her to seek legal advice in relation to what happened at the “meeting” with her angry boss. Turns out that this injured worker suffered a bad mental injury from that experience (meeting), she is unable even to leave her house to go shopping now!
The nightmare truly begins for this poor injured worker – workcover refuses her claim, of course it is always “he said/she said” (her word against his (even though workmates gave evidence as to her mental state and video shows before and after-meeting pictures). Her workcover case manager is not only extremely rude but says her mental breakdown cannot have been caused by bullying or even harrasement because there was only the one (1) episode; and unless more than one episode of bullying/harassment the injured worker’s stress claim can not be accepted.
This is not an isolated case either, I hear it all the time and I am truly sickened by it.
First the injury then the assault, by an unfeeling and uncaring “institution” or “system”. Moreover, I have listened in and taped quite a few workcover case managers, and have also been on the receiving end of such “conversations”… and am truly appalled by their obvious lack on human senses, but in order to save $ insurance dollars $, they are making it doubly impossible for injured workers to be able to return to work and be productive units in society.
It makes me think of another story I was told by a lawyer. The story goes that there was a very good employer who really profoundly cared about all his workers, and especially his injured workers. When a long-time worker (worked there 25 years +) injured himself there, this employer advised the workcover case manager to -please- deal fairly and equitably with his injured worker and to support the workcover claim with medical and like support. Unfortunately (and as is often the case), the workcover case manager had other ideas. Perhaps thankfully the Return to Work Coordinator of this great employer had taped the case manager’s reply/ies which were played back to the employer (the boss) as well as to a Judge in a court of law. The boss was truly shocked and outraged and defended his position as a caring employer. He rang the workcover case manager (and in turn her boss) who told him she “would deal with the injured worker anyway she felt like and had a process to go through which may include pressuring and intimidating the injured worker to keep the costs down low“. Even to “disallowing pain medication”, told the injured worker to just take panadol.
I do know that the process is designed to weed out the few workcover claims that are questionable but in doing so they also penalise all the genuine cases. Tragically, I also personally know of a person who committed suicide because the process was so onerous and he felt like everyone was calling him a liar. Couple that with a serious injury, pain and suffering, isolation from workmates and a regular job and something has to give. The psychological issues are just not dealt with and are simply trivialised.
What’s more, more often than not the employer and the insurer work from the perspective of denial rather than restoration when the latter will bring about better and more long lasting outcomes than the former.
Something needs to change and right now!
What can an injured worker do about something like this?
This is unfortunately not the first time I have heard and seen and even experienced first hand the treatment handed out to injured workers.
Let’s investigate what this injured worker (and anyone in a similar position) could do…
From a WorkCover perspective, and I’m presuming the injured worker is based in Victoria, the first thing she should to do is to assert her rights of appeal regarding her rejected workcover claim, by lodging a Conciliation (ACCS) immediately (you generally only have 60 days to lodge a conciliation, from the day of notification of a decision by the insurer).
Did you know that the Victorian conciliation system is actually more adversarial (read: against) to the workcover insurer (and the employer) than the injured worker?!It is actually quite a good system, and with a good advocate (such as a representative from WorkSafe Assist) this injured worker (or you) can achieve a very good outcome, especially if the medical evidence is there and is supportive. It is quite common at conciliation conferences for the workcover insurer to back down and make offers. (Note: Court action/proceeding is not available until the conciliation process has been finalised).
So it would be very important indeed for this injured worker to have gone straight to her doctor after her abusive meeting with her boss, so that any psychological/psychiatric sequelae caused by that meeting are fully documented by her doctor and, also, that names of witnesses are duly noted.
As from the employment perspective the injured worker will need to make a decision about her future there. I would not be prepared to stay in a workplace/situation like that but the reality is that this (and countless) injured worker may not have the option to go elsewhere. Do not ever resign when on workcover without seeking sound legal advice.
Should this injured worker be able to remove herself from her employment, an action in constructive dismissal would certainly be an avenue to explore as the bad treatment by her employer has forced her to resign ( s386 (b) of the Fair Work Act 2009.)
So, the best option at this point in time would be -yes- is to retain a lawyer to represent her interest for both actions (WorkCover claim and unfair/contructive dismissal).
[Article dictated by WCV and manually transcribed on her behalf]