Workcover processes and issues and – complex, complicated, intricate, involved, tangled, whatever…but common
In this section we’ll discuss some complex, yet very common workcover issues and processes, a modus operandi we have come to call “SSS” – Stall, Starve and Settle.
As you will see, the workcover system gets more complicated the deeper you get into it!
Deny, deny and Denying a workcover claim
Failing to take early and appropriate steps when injured (or made ill) at work and making a workcover claim put many injured workers often in a difficult position during -later- disputes.
One of the most important things injured workers must do when filing a workcover claim is to ensure they (and their employer!) make their claim within the required time-frame under the relevant legislation in their state.
For example, in Queensland, the worker must send an application to WorkCover Queensland (the insurer) within 6 months of suffering the injury (or illness) and support the application with medical evidence (i.e. certificate of capacity), which details the nature of the injury, how it happened and the period of incapacity/time off work. Same in other states, however the workcover claim is usually submitted to the employer in the first instance, but can be directly submitted to WorkCover (insurer).
Note: Time-frame to make a claim
- VIC: no limit – more a case of as soon as you become aware
- Comcare: no limit
- NSW: 6 months
- QLD: 6 months
- SA: 6 months
- ACT: 3 years
- WA: 12 months
- NT: 6 months
In Queensland, (and other states) the employer has then an opportunity to provide a response to WorkCover Queensland (the insurer) within 8 days of either the injury occurring, the worker reporting the injury to WorkCover, or receiving a request from WorkCover to provide a response.
The response must obviously describe whether the employer accepts or denies the worker’s submissions… and here begins the problems for many genuinely injured workers already! (See below section’ Establishing) liability for a workplace injury’ for more elaboration).
It is therefore very important that injured workers familiarise themselves with the workcover ‘process’, and ensure they fill in their workcover claim properly, as well as preserve any evidence of the incident (i.e. photographs of the scene, witness statements, witness contact details, diary entries in the case of psychological injury, emails etc.)
WorkCover (and their insurers) will make a decision based on the information it has been given, which might only be the employer’s twisted version of the story, if you know what we mean.
Many employers also abuse their rights and demand their insurer the information about the injured worker’s arguments so it can build its own counter-cases. Employer can quite easily identify the information they “should provide” to show the injured worker’s claim should be denied! Happens all the time and it all comes down to a 5 letter word: money (or premiums). Some employers will go to great lengths to try and deny an genuine injury/illness, and even though they may not succeed in having their case upheld by the insurer, they may just succeed in having the claim accepted for a much shorter period of time (i.e. by claiming stuff like ‘aggravation’ (elsewhere)).
WorkCover or an equivalent authority (insurer) is the body that will then liaise with the injured worker, and it is the body that has to comply with the statutory timeframes when assessing the workcover claim.
They must notify the injured worker of their decision to accept or deny the claim within X business days of the application.
Timeframe to make liability decision
- VIC: 28 days
- Comcare: N/A
- NSW: 7 days
- QLD: 20 business days
- SA: 10 business days
- ACT: at the insurer’s discretion
- WA: 14 days
- NT: 10 business days
If the insurer rejects the workcover application, they must give a written reason to the (injured) worker as to why it did deny the claim.
The employer generally receive nothing more than a 1-line letter stating they(the insurer) have advised the worker that their claim has been unsuccessful/denied. Employers generally do not get told the reason for the denial.
Establishing liability for the worker’s injury
Determining liability for a workplace injury (physical and/or psychological) can involve a lot of legal jargon and blah blah, which can be quite difficult and very frustrating for injured sods to understand, especially given their circumstances (they are injured, sick, undergoing surgery, etc.)
Following a workcover claim, it is the workcover insurer’s job to assess whether or not the injury was caused at work, whether or not work was a contributing factor to the worker’s physical and/or psychological injury, or whether work contributed to an aggravation, acceleration or exacerbation of a pre-existing injury.
As mentioned earlier, employers will be gathering ‘their’ facts and provide their side of the “story”, more so in cases of alleged bullying/psychological injury.
In fact, it is the employer’s job, after submitting their response to a workcover claim, to provide statements and other relevant information to the workcover insurer, such as incident reports and a copy of the workplace injuries register. They also needs to provide the workcover insurer (and at times a workcover inspector) with access to the workplace, particularly in cases of ‘serious’ injuries. Remember that employers have a duty to ensure that they follow all correct occupational/work health and safety procedures to keep their workers safe.
The workcover insurer will definitely speak to the employer, even colleagues of the injured worker, and, if available, witnesses of the incident. They will also look at medical information/evidence submitted by the injured worker, especially in cases where it is not clear what (precisely) caused the injury. I.e Was the worker horse-playing?
Employers will carefully listen to what their employees are saying about the injured worker, and, needless to say that many employers will discuss with their insurer anything they’ve “discovered” or heard around the workplace, including gossip about how a worker’s injury occurred. Again, this is routinely done in cases of alleged ‘bullying’, ‘harassment’ (psychological injuries). In cases of physical injuries, employers (and insurers) will want to know how the injury exactly happened, especially with a view to assess whether there was any negligence or contribution to the injury on behalf of the injured worker! An example of a contribution or negligence on the part of the injured worker could be horseplay, not following OHS procedure, a pre-existing injury (always looked for) etc. – And yes, we have a ‘no-fault’ system, but we can assure you that everything is done to blame the injured sod – again it boils down to the famous 5 letter word: money!).
Start by making sure that all of the information on your claim form is correct. In the workcover system any errors will be punishable by starvation! (Might sound a little harsh but trust us it is still too close to the truth!) Your workcover insurance will be looking for any mistake, so make a point of checking and re-checking everything. Remember to keep a diary and copies of absolutely everything! And don’t forget to get a recorder, they never forget. (See check what you can and cannot record do in your state!).
The bottom line is: don’t expect your employer to be open and honest with their workcover insurer – many are not, and will do anything (lie through their teeth) to deny a workcover claim! You also have to remember at all times that your employer is the workcover insurer’s customer, not you!
Gas-lighting, Disputes Reviews and Appeals
What can we say, victims of such a brutal system, but that all injured (or ill) workers who have their workcover claim (or a part thereof for that matter) denied should prepare as best as possible for brutal onslaughts, as to make their written and/or oral submissions as credible and persuasive as possible. Because that is exactly what employers who disagree with a workcover insurer’s decision will do, and/or what the insurer will do… to deny and deny, and deny your claim, your entitlements or benefits.
In some states, review and appeals processes can take more than 2 years (!) – hence our term ‘gas-lighting’, and during this whole (fully sick) time, the employer (and the insurer) and you (the injured worker) generally have the right to make written submissions (and in some states at times spoken submissions). Again, it’s important you -the injured sod- are aware of the review/appeals process in your state and that you make the most of it.
Note: Reviews are basically an administrative review, meaning the workcover authority (or regulator) is only going to bass its decision on written submissions and provided documents. It does not have the same inquisitorial powers as, for example, the Industrial Relations Commission (IRC). It is therefore common for a decision to be made by reference to who makes the most compelling (credible, persuasive) submissions.
The difference between- for example- the QLD IRC appeals process and the review processes is that the IRC is a hearing process, which includes a decision maker who will listen to cross examination of witnesses and look at evidence.
Let’s assume we’re in Queensland:
In Queensland, for example, if one of the parties (employer or injured worker) is not happy with the workcover insurer’s decision about a workcover claim, they can seek a review of the decision by Q-COMP ( Queensland’s workers’ compensation regulatory authority.)
If the matter is referred to Q-COMP, denying employers will review their case, resubmit information, and outline the deficiencies in the original decision. They will seek reasons for the insurer’s decision as gain some understanding what was taken into account when the insurer made their decision…They will go to great lengths to actually engage with Q-COMP to get a good idea about what the real issues were. Many employers will also find out if the injured worker has made any further submissions it doesn’t know about, and adjust its own submissions accordingly! This is where it become critically important that you, the injured worker, engage a decent workers comp lawyer, so you too can have the opportunity to provide new evidence or make additional submissions.
Of note is that many bullying and harassment (psychological injury) claims are denied, and the employer will use the standard loophole “reasonable management action, bullying and harassment, and/or performance management”-type defences, which will be argued and outlined ad nausea in their submissions.
Injured workers must also be aware that if they are making an application for review, they have a right to appear before the workcover authority (regulator) and make verbal submissions,which many injured workers are unaware of (and it can be quite helpful to be able to articulate and discuss your case). However this right also applies to the employer.
Obviously, if the workcover authority (regulator) makes a decision in favour of the injured worker in a workcover claim, the injured worker is legally entitled to workcover benefits, and may even be entitled to pursue common law damages.
If you read the last 4 words – yep ” entitled to pursue common law damages” – you may start to understand what this is all about – money. This is the reason why so many genuine workcover claims are routinely denied, on whatever ‘fabricated’ grounds indeed.
If one of the parties (either the employer or the injured worker) appeals the decision, the (Industrial Relations Commission) IRC can order a non-compulsory conference at either party’s request. This conference, which takes a couple of hours, is facilitated by a ‘commissioner’ and is basically nothing but an exercise to let both parties ‘test’ each other’s cases and arguments, and try to agree or, at the very least, narrow the arguments. Such conference has nothing to do with a settlement (money/lumpsum), as Q-COMP in this example, won’t even take part.
Note: In some small, minor cases it is possible for an employer and an injured worker to settle a claim between them. This is often the case if it would cost way more to pursue or prosecute the case.
If both the employer and the injured worker agree to narrow their case(s), they then need to comply with a list of documents as well as a a list of witnesses. If the parties disagree, then the person who is dissatisfied with the decision rendered has a right to run the case with as many arguments as s/he sees fit and the defendant has to respond to it. As you can well imagine, this can go on and on and on…
However, sometimes such conference(s) can also result in a positive outcome.For example, the employer may decide to withdraw their appeal, or the appeal may be dismissed entirely by mutual consent (provided the IRC accepts it).
Things to remember are that generally, if the employer appeals the workcover authority’s decision (in our example Q-COMP), the injured worker also has a right to participate in the IRC process.Conversely, if the injured worker appeals the workcover authority’s decision, the employer does not have a right to participate in the process – at least not an automatic right. Instead the employer has to meet certain requirements incl.whether it is in the public interest for the employer to be part of the process.
The IRC can ultimately confirm or vary the original decision, or set it aside and either replace it with another decision or return it to the workcover authority (i.e Q-COMP) with (further) directions.
In Queensland, appealing to the Industrial Court is the final step in the process, and they will only look at questions of law (errors). They don’t assess credibility of witnesses etc.
Errors of law include for example things like:
- where certain the facts and/or circumstances could not possibly have given rise to the finding of an injury
- where there was no evidence to support that the injury was work-related
- that the commissioner made a mistake in determining that the compliance and requirements and steps under the Act had been met
The famous Medical Panels
Many workcover claim disputes are referred to so called Medical Panels.
Every state with the exception of the ACT, the NT (*) and the Commonwealth (Comcare) has a type of Medical Panel process in place to deal with workcover related medical disputes. (Again, refer to Safe Work Australia’s Comparison of workers’ compensation arrangements in Australia and New Zealand (2013) for a summarised description of your state’s/jurisdiction dispute process(es), incl.Medical Panels.)
(*) In NT, NT WorkSafe, can only organise a panel of medical experts to determine an injured worker’s level of permanent impairment if there is a dispute
Also, as far as we know, all Medical Panel decisions are final and binding on the relevant tribunal or court, except in SA.
Injured workers can be referred to a Medical Panel for a variety of reasons such as for example, in the case where the parties (insurer/injured worker) disagree on the injured worker’s level of permanent impairment; to assess whether a denied ‘benefit’ by the workcover insurer is ‘reasonable’ or not (i.e. surgery, home help, counseling etc.), but injured workers can also be sent to a Medical Panel to determine whether their injury arose in the course of employment.
As described in our FAQ WorkCover Vic (section Medical Panel Dispute), when a matter is referred to a Medical Panel for a decision to be made, it basically involves a full medical examination of the injured worker ( to the extent relevant for a claim – body area).
The Panel will be made up of a number of Medical Practitioners which will usually reflect expertise in the different areas of injury that an injured worker has specified. However, something that few injured workers are aware of, is that many IME’s routinely “rotate” through the medical panel – but, if a “bad” IME has to assess an injured worker in the presence of several other doctors, chances are that s/he will have to be a little more careful and… honest!
Medical Panel doctors display quite a high level of independence. Their medical examinations tend to be very careful, and professional . Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds. Indeed many injured workers report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations. Saying that, there’s still a lot of scepticism and mistrust of the Medical Panel process.
It is possible for an injured worker, usually through their lawyer, to make a written submission to a Medical Panel about a matter. This usually only occurs if there is some particular or unusual aspect to the matter which needs to be drawn to the Medical Panel’s attention. If a written submission is made to a Medical Panel it is important to keep the submission very brief in order to ensure that it has maximum impact. (Again seek legal advice).
This is particularly errh, ‘worrisome ‘ if the, for example, the Medical Panel is asked to determine whether a worker’s injury arose in the course of employment (=was caused at work, was work-related, in order to determine liability). The insurer/employer can for example furnish all the injured worker’s records, such as his/her job duties (even a video of the tasks in cases of, for example repetitive stress injuries), and in psychological injuries statements from colleagues, other workers, including the above mentioned gossip (and anything else they discover about the injured sod during their ‘investigation’).
Obviously if the question posed to a Medical Panel is for example about a dispute regarding the level of permanent impairment of an injured worker, there is not much the workcover insurer / employer can do to ‘influence’ the Panel’s opinion (save for the all-mighty gotcha video surveillance of course).
Staying in touch with injured workers
Something as simple as an employer sending a card or making a phone call to an injured worker at home can help get him or her get back to work sooner. It’s not uncommon for injured workers to feel depressed and alone.Employers who show that they are thinking about them can – according to studies- go a long way in accelerating the return-to-work progress and -more importantly- keep their mind off possible litigation. Read between the lines!
So, staying in touch with an injured worker has benefits for both the injured worker and the employer. And, yes, it wold be nice if our employer(s) would actually care. And this would help alleviate our anxieties about our ’employment status’ as well.
The reality however for many of us is that we quickly become a noisy nuisance and a replaceable commodity! Sadly too many employers will quickly find a way to sack their injured workers, rather than accommodate them.
Now, don’t get us wrong. If you suffer from a minor injury, for example a broken leg which requires 1 surgery and 6 weeks time off, of course chances are that your employer will be nice to you. The problem starts when you are more seriously injured and need prolonged time off, suitable/modified duties, and/or some accommodation in the workplace (e.g ergonomic aides). Even the most “loyal and most awarded and praised” long term employees amongst us have been given the sack for no other reason than for having been seriously injured (and often through the sheer negligence of our employer!).
Another issue is how often should your employer contact you (provided they do keep in touch that is)?
According to an article published on WorkCover QLD’s website, it is “vital for employers find out how often an (injured) worker would like to be contacted, according to a regulator’s customer services general manager.”
“Some injured workers want a lot of contact with their employer while they are off work, while others want very little.”
How often an employer should contact a worker also depends on “the nature of [the worker’s] injury, timing of treatment and how long the worker is likely to be off for”
“Contacting the worker too frequently could be perceived as prying or placing pressure on the injured worker to return to work.”
Failing to contact the worker at all, however, can discourage workers from participating in the injury management (aka RTW) process.
“In some cases, workers can even become angry and resentful, resulting in unsuccessful return-to-work attempts”.
“This in turn impacts on claims durations and costs, and ultimately increased premium costs for employers, as well as a poor health outcome for the worker and their family.” Read between the lines.
Early and regular communication from employers “plays a very important role in an injured worker’s recovery and successful return to work following an injury”.
WorkCover QLD (and other workcover authorities for that matter) also released a guide on communicating with ill or injured workers, which encourages an employer to:
- be empathetic in its communications, as this demonstrates it cares about the worker’s wellbeing;
- make contact with the worker as soon as it is aware of an injury;
- invite the worker to meetings or functions they might be able to attend, and send newsletters and updates about any announcements made while they are away;
- remain positive when speaking over the phone and avoid placing blame about the injury;
- focus on things the worker can do, rather than things they can’t;
- reassure the worker that their job is safe;
- listen to concerns they might have and address them promptly;
- ask the worker if they feel they could return to work and discuss suitable duties; and
tell the worker it looks forward to their return.
The famous Return to Work plans
Employers in all Australian states have certain legal obligations to injured/ill workers with regards to return to work which include preparing return to work plans/programmes for injured/ill workers. Refer to our section Return to Work for more information.
The best chance an injured worker has to return to work in a sustainable, safe and appropriate manner is when his or her return to work plan is developed with the injured worker’s input, together with the treating injured worker’s medical doctor(s) and when the return to work plan is set in stages (graduate approach to full time hours). Unfortunately many return to work plans are hastily fabricated by our employers (or the likes) without seeking any input from injured workers! Some injured workers also never even receive a formal return to work plan!
Obviously, the first step in developing a RTW plan is for employer to really clarify the injured (or ill) worker’s function – that is: what they can do (and cannot do) in relation to work, and not simply “assume” capacity or incapacity.
In order to help clarify an injured/ill worker’s ‘work’ function, the employer should start by assessing the injured worker’s medical certificate (certificate of capacity), and – with the injured worker’s permission – speak to (or write to) their treating doctor or specialist if needed, for further clarification.
The employer then needs to determin what work duties the injured worker is able to undertake.
Injured/ill workers employers should be very clear on the functional demands of the worker’s pre-injury position and determine if and where these match their current capacity. For example, if the injured worker works in a supermarket, stocking shelves, and they have a lifting restriction of 5kg, it might be that they can perform part of their role, such as driving the trolley(s) or mini-forklifts, because it doesn’t involve any lifting. An injured nurse who is nt allowed to lift anything can be allocated suitable or modified duties, for example s/he can ensure s/he does not partake in the lifting and rolling of patients; or could be allocated to work in admission for the duration of her/his restriction(s).
The employer may also need to identify more sedentary tasks the injured worker is capable of doing, to further round out their role. For example, if an injured worker has sustained a back injury, chances are they will need to be on light duties or on some sort of office duties until they recover, where they can sit and stand (and lie down) every so often, when necessary.
After the employer has matched the injured worker’s functional capacity and work duties, the employer then needs to seek medical recommendations as to how the whole plan should be staged or implemented and how long it will be before the worker is likely to return to full capacity.
Obviously, the length of the return to work plan will depend on the nature and the severity of the worker’s injury and the types of duties the worker is aiming to return to (e.g pre-injury duties, labourer etc).
The RTW plan, which starts when the injured or ill worker has a capacity to undertake some work, should outline the various stages the worker will go through before reaching the (ultimate and ideal) goal of returning to pre-injury hours and duties. For example, the staged or graduated RTW plan may state that the injured worker is expected to return to pre-injury hours in 6 weeks, but that their hours and duties will change during this time, with a detailed yet flexible plan (for example week 1: work 3 hrs a day; week 2: work 5 hrs a day etc.)
The RTW plan needs to be flexible and reviewed at least weekly-with the injured worker- so that any barriers or issues that come up along the way can be identified (i.e. increased pain etc).
If one of the work duties is causing the injured worker pain, for example, then the employer should determine, together with the injured worker (and his/her medical treater(s)) whether the particular task is actually suitable, and whether it could be changed. This is so important. You would be surprised how many injured workers have seriously aggravated their injuries because of unsuitable and forced upon return to work plans!
Sometimes problems can be resolved simply by providing the injured worker with assistive or ergonomic equipment or tools to make the task easier! Think of an alternative computer mouse, a chair with an armrest, back support, dictation software etc.
Whilst sometimes RTW plans go very smoothly and follow the staged implementations, sometimes RTW plans simply don’t work, and the injured worker is unable to get to the next stage of the plan. This is often the case when the injured worker exacerbates his/her injury performing certain tasks, at other times it is simply because the injured worker does not recover as quickly as expected – we’re all individuals after all! (And should be treated as such).
Again, it is important for the employer, the injured worker and the medical professional to provide their opinions on how best to proceed in the event the RTW plan ‘stalls’. The injured/ill worker should explain to the employer and their treating doctor(s) how they feel they’re coping with the RTW plan and the tasks and hours involved and medical doctors should give their assessment on the worker’s functional capacity..
As posted under our section Return to Work, some employers have dedicated ‘RTW coordinators’ (or likes) to handle and oversee (plus monitor) the Return to Work process. If an employer doesn’t have a RTW coordinator, then responsibility will normally fall to the injured/ill worker’s line manager, as they have the greatest amount of contact with the injured worker and are best positioned to regularly check in with the injured worker and see how the injured worker is coping when undertaking their RTW duties.
Another important aspect of the RTW plan is that the employer needs to be confident that they’re offering suitable duties that are within the injured worker’s functional capacity, but also that the duties are meaningful to the injured or ill worker. There is nothing more insulting that to be given meaningless or totally humiliating ‘work’! (and dare we say it happens way too often!).
more to come – stay tuned