The following post regarding a lengthily and ongoing Pre-Injury Average Weekly Earnings (PIAWE) dispute and question(s) in Victoria was submitted via our “Guest Post” section by “Mad Chef”.
We received a very common question from an injured worker regarding the calculation of the entitled Pre Injury Average Weekly Earning, aka as PIAWE, which we will resummarise in this post.
I received quite a few questions about weekly payments and PIAWE and how they are calculated. In this post I’ll do my very best to explain what your entitlements are (Victoria) and how your PIAWE should be calculated.
Weekly payments under WorkCover vary. They depend on:
- When the injury occurred and the claim was made
- Level of Pre-injury Average Weekly Earnings (PIAWE)
For most workers this means the average weekly earnings during the twelve (12) months before the injury.
Weekly payments of workcover compensation
If a worker is injured or suffers a disease in circumstances that qualify them for compensation, they can be paid weekly payments of compensation if they cannot work (have no current capacity) or cannot work all the hours they worked before being injured or can only perform alternative work which is now being paid at a lesser rate of pay (has a current capacity for work).
First 13 weeks off work
The compensation payable is 95% of the worker’s pre-injury average weekly earnings (PIAWE – see below for how PIAWE are calculated) for the first 13 weeks during which the worker cannot work.
There is an upper limit on the amount of compensation a worker can receive and that is currently $1,250 per week.
For example, a person earning $70,000 gross per year ($1,346 gross per week) will not be paid 95% of their wage but instead would be paid $1,250 gross per week for the first 13 weeks.
After the first 13 weeks the rate of payment for total and partially incapacitated workers is the same
All workers with a partial capacity for work who are not working will be paid at the same rate as totally incapacitated workers after 13 weeks, that is, 75% of pre injury average weekly earnings, up to a maximum of $1,250.
Workers with a partial capacity for work who are working will be entitled to receive the difference between 75% of pre injury average weekly earnings (PIAWE) (or $1,250, whichever is the less) and 75% of current weekly earnings.
Take as an example, a worker whose PIAWE was $500 gross and the worker has returned to work earning $300 gross per week. The compensation should be calculated as follows:
However , if 75% of PIAWE exceeds $1,250 then weekly payments of compensation to which the worker is entitled are $1,250 less 75% of their current earnings, which in the case of a person who is earning $300 per week would mean $1,250 less $225 = $1,025 as follows:
WorkCover weekly payments to be made for 130 weeks
All workers who claim for compensation after 1 January 2005, who are still receiving payments, who have a total or partial incapacity for work and who are otherwise entitled to receive weekly payments are entitled to at least 130 weeks payment.
Notice of termination of WorkCover weekly payments
Workers must be given at least 13 weeks notice of a decision to terminate weekly payments because they have received or will have received payments for 130 weeks.
Weekly payments after 130 weeks
Workers are still entitled to receive weekly payments where they have no current capacity for work and that situation is likely to continue indefinitely.
Special provisions cover certain workers after 130 weeks if they are working. Workers who are working at least 15 hours per week and are likely to continue indefinitely to be incapable of undertaking further or additional employment or work are entitled to further compensation beyond 130 weeks. Seek legal advice on how to apply!
For more detailed and up-to-date information, please refer to the online Law Handbook (Vic), which has a very good, clear and detailed section about weekly payments.
The aim of conciliation in Victoria is to resolve disputes and avoid litigation. The injured worker can request conciliation if there is a dispute between the injured worker and the agent (insurer) and/or employer about the injured worker’s claim. What’s more, if your WorkCover insurer fails to respond to a request within 28 days you can also lodge a Conciliation.
Avoiding Reimbursement Scam
So you book and pay for a Taxi/ Accommodation/something similar
Your lovely SCM sends you back your reimbursement payments only to find yourself “paid less” AGAIN. It exceeds the recommended amount. WTF. But nobody tells you the recommended amounts.
This has happened so many times and it totally gives me the Sh*ts!
Although the following workcover story was submitted anonymously as a “Guest Post“, we have tagged it under “Your Stories” as it involves a desperate injured worker sharing his/her– all too common– workcover nightmare and who is seeking help.
WorkCover weekly payments can be stopped for many reasons. If you receive a Notice from your workcover case manager/insurer stating that your weekly payments (income maintenance) are to be terminated you should seek legal advice as soon as possible, bearing in mind that there are strict time frames within which a dispute can be lodged.
Have you ever had a workcover insurance company or a workcover case manager apologise or even admit they made a mistake? We don’t think so! The fact is that workcover claims handling errors are rampant and have become a serious issue, which – certainly in more civilised countries such as Canada and USA- attracts sanctions and fines against insurance companies.
The most common workcover claims handling errors
Workcover claims management , supervisors/team leaders , and the workcover case managers make many errors in judgment, or (often) wittingly and sometimes unwittingly commit “an oversight”. The fact of the matter is that we have yet to come across a workcover insurance company, or a case manager (or team leader) who admits they have made a mistake! Even when gross mistakes are made, all an injured worker can expect is something along the lines ‘oops, it was an “oversight“‘. Even when the 6 Victorian insurance companies were audited in 2010 by the Ombudsman and extremely serious mistakes were identified leading to fines and sanctions, not one injured worker whose claim was seriously mishandled received an apology!
Interestingly there is also no list of common workcover claims handling mistakes on any of the insurance company’s website(s), nor a directive on how to complain about a ‘mistake’.
So, we believe it is time to re-summarise what are common workcover claims handling errors seen when the workcover claims and files are audited, for example by the Ombudsman.
The most common workcover claims handling errors
Apart from rampant privacy breaches, lost documents and delayed payments stemming from poor record keeping by insurance firms, and manipulated incentive schemes the following are very common mistakes:
- Failing to properly and thoroughly investigate the claim(s) including establishing of the nature and extent of the injuries. Case managers are extremely quick to pull the trigger and deny a perfectly legitimate claim – failing to gather all of the details before rushing to judgment!
- Failing to properly calculate and document the average pre-injury weekly pay (PIAWE) and to properly establish the weekly pay rate! This is so so common!
- Failing to maintain the injured workers’ files on a diary-type-document and ensuring regular scheduled file reviews by the case manager to ensure all needed ‘activities’ have been completed – as we mentioned earlier, poor claim file documentation makes the claim handling a thousand times more difficult and frustrating!As mentioned on our previous article, we often wonder what the heck is going on when we’re allocated (yet another) new workcover case manager, another one who does not seem to know anything about our injury, medical treatment, capacity for work, and pending requests i.e. for surgery, home help etc. Suddenly your weekly pay is terminated, your medical and like accounts are no longer paid for, your medication is under ‘review’, and they may not even be aware that – for example- surgery has been requested.
- Failing to have or keep simple action plans – i.e. a to-do-list!
- Failing to record in the file notes the documentation received on the (injured workers) file
- The failure of the insurance company ‘management’ (i.e. team leader) to, at least, provide some supervision or guidance to the case manager(s) handling the claims!
- Failing of management/team leader to maintain some sort of continuity on the injured workers’ claims by changing the assigned case manager (like undies) on the claim during the course of the claim
- Oh and here we go, so so many case managers simply fail to read injured workers’ medical reports! Not only are case managers medically uneducated – i.e. a case manager may have studied some ‘economics’ and think they’re good for the job as they may be able to know how to save the insurance company money, but not only do they have no clue whatsoever about medical terminology, complex injuries (everything save for a fracture), but they don’t even bother reading medical reports! How is it that when you communicate with your case manager, they most often are not in the slightest aware of your current medical condition? You may have undergone 10 complex shoulder or spinal surgeries and they’ll still refer to your injury as a “bruise” or “back sprain”, not understanding that you are permanently and grossly disabled, and that you may indeed need home help or physio? Not that long ago I did not know whether I had to cry, scream or laugh when I received a letter stating that “physio is inappropriate for you” notwithstanding I had undergone 8 massive shoulder surgeries, all complicated and had a reverse shoulder prosthetic inserted… Huh? No physio?
- Another very common mistake is that many case managers fail to know the workers compensation laws in their jurisdiction(s)!
- Many workcover case managers also fail to maintain contact and some sort of rapport with their ‘claimants’ (injured workers). I need not remind you of how many times your emails/letters/calls have gone unanswered and how many times, out of the blue, you may have received some “correspondence” asking you a question which you answered half a year ago, and… they never reply when you do… Fact is they don’t know you from a bar of soap, to them you are just a number.
- Failing to file the appropriate forms with, and failing to forward/submit relevant documentation to i.e. Conciliation, IMEs and Workers Compensation Boards. (See: Workcover only provides very selective material to independent medical doctors and medical panels)
- Failing to use Independent Medical Examinations (IME) when appropriate, and failing to send the injured worker to an IME with sufficient expertise in the field of the injured worker’s injury. Again IMEs are simply used as a tool to deny a benefit, they are used way too often (even though the legislation is pretty clear on when to use an IME), and – whats worse- just about all injured workers are sent to (geriatric) IMEs who have no expertise whatsoever in the field of injury. How often have you been sent to an “occupational physician” even though you suffer from extremely complex orthopedic injuries? Have you ever been sent to an IME Pain Specialist? Mmhh, I don’t think so!
- Failing to use or consult with a nurse case manager when appropriate, or a medical advisor. Again case managers are not medically trained but pretend to know things better than even the best medical specialists on the planet!
- Failing to respond to important developments on the injured workers’ claims. For example, your surgery may have broken down, or you developed a severe complication – still the case manager will ignore such turns and will for example continue to pursue your ‘vocational assessment’, or ‘rehab’. They may also send you to an IME shrink, just to make sure your deterioration is not overlapped psychologically! This happened several times to me, one such ‘incident’ still stands out where my case manager was informed by my treating specialist(s) of a major physical deterioration, however I received a letter stating – literally- that the case manager was not interested in my severe physical deterioration (only in my RTW!).
- Another major issue is the failure to even try to return injured workers to light/suitable/modified duty work when the doctor(s) approved it! How often have we heard from injured workers who were denied a RTW, simply because their case manager was too greedy (or dumb) to organise $100-200 worth of ergonomic aides in the workplace? Or they failed to manage the “rehabber’s” lengthily and most outrageous RTW process?
- Failing to monitor and provide timely and appropriate medical treatment – need we say more?
- The failure to approve related medical treatment or related body parts when introduced into the injured worker’s claim! I.e. you may develop major depression because of your (severe) injury only to have counseling denied. You may develop a complication, for example a tendon was harvested from your leg and put in your arm, the donor site became infected or suffered a permanent nerve injury, only to have all medical and related treatment to your leg outright denied on the basis that it is “unrelated’ (WTF).
- Failing to conclude or settle claims in a timely fashion when possible!
- Add your own case manager’s biggest blunders!
What workcover insurance companies and case managers fail to understand is that when these ‘mistakes’ (aka ‘oversights’) occur in the claims handling process, the cost of the actual claim goes up! In addition the employers who pay the premiums are also affected by these ‘oversights’, as the severity of the claims – what the claims actually cost – also impacts their insurance premium.
[Post dicated by WCV and manually transcribed on behalf of WCV]
Do you, like Judy, read legal cases or stories involving considerable sums of compensation payouts to injured workers and wonder why it is that you did not receive any such compensation (payout) from workcover, even though you are badly injured and may never work again? If you do, read on as we’ll explain how this “compensation” works in Victoria and hope it all makes some sense.
Talking about work capacity and weekly payments, the possibility of an injured worker’s weekly payments being reinstated, despite a termination many years before (in this case nine years), has been highlighted in a fairly recent Magistrate’s Court decision – Smith v Woolworths (Garnett S, 2 May 2013).