“How much is my workcover case worth?” Is a question we receive very often from seriously injured workers. It is a very difficult question to answer because the “commercial value” of your case depends of many factors, and each case is unique.
Workers’ compensation (aka workcover) was created for two primary purposes—to provide at least partial compensation for lost income and to pay for medical treatment and rehabilitation services for workers injured or made ill on the job. This approach seems to offer a good deal—if it only worked.
Any workcover issue can lead to disputes and/or litigation, and many do. If you have a particularly aggressive workcover insurer that loves nothing else but deny cases, benefits and settlements, it will often lead to legal hearings over adversarial decisions the workcover case manager made on the claim. Some workcover claims/cases which are in litigation are more complex than others, but all have one thing in common: they (generally) drag on forever. Let’s look at some of the factors involved that (may) lead to protracted litigation/settlement.
As we have discussed in a previous article, many seriously injured workers believe that a workcover settlement is a windfall, a welcome piece of good fortune or personal gain, and that it will compensate them for all that they feel they have lost and endured (and still will lose and endure in many cases); and will somehow offset the limitations they will have in the future.
what many seriously injured workers don’t understand or realise is that -of course- it does not and that later realisation is quite devastating, and can bring about what is called a second wave depression.
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.
If (or better yet, when) you hire/engage a workers’ compensation lawyer, help them help you obtain full treatment and benefits for your injuries. In order to fully maximise the amount of benefits the injured worker ultimately receives, lawyers depend on their clients (YOU) to provide them with the information they need to fully represent your case. There are several things you can do to help your lawyer in this effort, including watching what you do and say!
As we’ve mentioned yesterday, many lawyers (and law firms) enter into ‘no win‐no fee’ costs agreements with their clients, undertaking legal work on their behalf on what is sometimes called a ‘speculative’ basis ( because the lawyer agrees to take the risk that the case might lose)
The idea behind a ‘no win ‐ no fee’ cost agreement is that it gives people with limited finances access to justice…
In order to establish liability for a workcover claim, it is usually sufficient to demonstrate that an injury occurred at work. However in order to prove negligence and as such access common law damages, a seriously injured worker has also to be able to prove exactly how his/her injury occurred at his/her workplace. The following interesting District Court of WA judgement shows that workers in supervisory roles cannot place themselves in harm’s way or exceed their physical limitations and then claim negligence on the part of their employer if they subsequently become injured.
We’ve said it a million times, the most important thing is to be honest about your injury, condition, restriction(s), to be yourself at all times, to be aware that you will likely be under some form of surveillance at some stage during the life of your claim (definitely if you proceed with a common law damages claim) and that you should never forget that you also need to give your lawyer(s) and barristers the very best opportunity to secure the best outcome for you!
It is not the first time that we hear of injured workers’ cases being thrown out by Judges based on malingering or exaggeration, and evidenced by substantial video surveillance.
Supreme court rejects compensation claim based on surveillance
A decision to reject a Sunshine man’s claim for compensation following a workplace injury six years ago has been upheld in the Supreme Court.
Josip Kalinic’s application for pain and loss of earnings compensation was dismissed in the County Court in September last year after surveillance footage tendered as evidence showed him walking four kilometres to Sunshine railway station on two occasions without any apparent discomfort.
Mr Kalinic, 52, told the court he could only walk for up to 30 minutes and was unable to stand without pain after being injured while working as a fitter and turner in August 2007, when a large steel plate fell onto his left lower leg, lacerating and crushing soft tissue.
He returned to work on modified duties after surgery, but his employment was terminated on November 17, 2008.
Surveillance video showed Mr Kalinic walking “relatively extended distances”, in stark contrast to his claims that he was in constant pain and lived a very restricted lifestyle, which he compared to “like house arrest”.
In one video, Mr Kalinic was shown walking his dog for nearly an hour at a brisk pace on June 29, 2011.
On two other occasions, on May 12, 2012 and May 16, 2012, he walked four kilometres from his Sunshine home to the train station, even though he had a driver’s licence.
Mr Kalinic also told his doctor he could only stand in one position no longer than five minutes, but he was filmed standing in one position on a train into the city for 25 minutes.
“In my view, the level of activity that the appellant displayed on May 16, 2012 and on the other surveillance film was inconsistent with the picture painted,” Justice Ross Robson said last week.
It’s really official – no more confusion for our NSW injured workers, our own senior lawyers have confirmed that the NSW Workers Compensation Commission (WCC) is now allowing injured workers to amend proceedings to include claims for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987.