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Head on over to our section: Your Rights, which contains a page titled “workcover legislations” where you can find all the workcover laws.
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We have created pages and lists of FAQs, i.e. WorkSafe VIC FAQ, WorkCover NSW FAQ, where you can find heaps of information.
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Obviously the archived help page contain hundreds of answered questions, and there is also a Tip page (see menu) which has some very useful information.
as posted by “Sarah” on the previous page (which ran out of space)
Thank you guys for your kind words and support. I am going to my WorkCover QIRC conference next week up against Q Comps ridiculous decision to award me 150 per week as my salary as an accepted full time General Manager of a large company and whilst I have witness affidavits from former employees including the admin officer who did the wages and my employer even admited to workcover what my salary was I am still at a loss as to how they are able under the QLD act to apply 150 a week as my “Normal Weekly Earnings” I contaced the ATO and my employer never reported me as an employee and as he destroyed all my pay slips and agreements of employment does anyone know of any case law from the QLD industrial relations commission re if an employer underpays someone and how to get them to make the correct decision ( Or even the QOTE accepted Minimum wage???) How can it be legal to award me less than Newstart if I am accepted (In writing) to be full time and at senior management level???? anyone have any thoughts or ideas please . Doesn’t the QLD act state that NWE calculations should include payments “REQUIRED BY AN EMPLOYER AND THAT WOULD HAVE CONTINUED IF NOT FOR THE INJURY) DOESN’T THIS MEAN i SHOULD BE ALLOWED TO INC IN THE CALCULATION THE WAGES THAT WERE WITHHELD AS CONFIRMED BY WITNESSES or at least shouldn’t they have to apply the wage or a person in the same role in the same district if the wages are impracticable to calculate at the time of the injury????
I am self representing with severe anxiety and PTSD against Q Comp barristers ( even workcovers independant concurred with the diagnosis and states in report that I am very ill and will not ever be able to work at senior man level again ever….I am mid thirties… Anythoughts on how I could approach this conference? any one???? PLEASE can anyone tell me what is the commission like.do they apply just a smidgen of common sense in a case like mine or are they just as mad and crazy as Workcover QLD and Q-comp???
Not sure how we can help you. Our advice would be really to seek legal advice immediately and see whether you have a case. Personal injury lawyers will take on your case on a no win no fee basis, provided you have a “case”. The fact that you have no employment records sounds horrifying to us (no ATO, tax returns etc) and may really make things very hard for you, notwithstanding witnesses. This is why you really need legal advice,and representation (you only get one go!).
The only resources we have on QLD workcover are listed here
You can also conduct a search with the keywords “Q-COMP” and “WORKCOVER QLD” to find all articles (blogs) we posted.
Also reading legal cases (search “legal cases”) may help you prepare and have an idea how people argue in court…
Good luck !
How about your bank statements? They should show your monthly regular income and the ID of the payments (who made them – your employer). Think of anything that proves that you worked as a senior manager and how much you earned – bank statements, email correspondence, client meetings, calendar, diary etc. Surely there must me some evidence of your monthly income somewhere. And, please seek legal representation. You are not in a state to self represent, nor should you. This process is horrific and can be gutting/humiliating and highly emotional and traumatising for you. Perhaps seek an adjournment (delay the meeting) and seek legal support. And look after yourself!
Hi Sarah
This really sounds bizzarre, not you – your case. I agree with WorkCover Victim – seek legal advice ASAP. Also, please make sure you are receiving appropriate medical treatment. Despite the obvious amount of distress you must be feeling, it is important to maintain some degree of balance. Too often, injured worker who are highly distressed come across as unbalance due to the intense stress associated with this horrific process. It helps considerably to remain as calm and objective as is possible, hence the importance of making sure you have the right medical treatment and support.
Also, by off-loading your case onto legal representatives should also help lighten the load.
None of this is easy, of course, but very necessary – just remember its part of a process that will hopefully be resolved sooner rather than later.
Definitely go to a solicitor.
Does this injured worker have any pay slips etc from this employer ?
Did the employer admit liability in writing ?
Did the insurance company representative meet with you ,your medical doctor and a representative from the employer ?
It does seem that you really need to contact Work Cover Qld and get them seriously involved considering your psychological illness is very serious.
If you have any payslips, letters of communication from this employer, employment contract etc this will be in your favor.
Very concerned here that this employer has destroyed evidence .
Corruption comes to mind .
Corruption comes to mind – I agree. Something smells rotten.
Hi all,
I was so pleased to see your replys and I must tell you how much it means just to have anyone even attempting to help me through this very confusing system especially when my injury prevents me from being able to concentrate well and so on and so forth.
In answer to the question regarding my bank statements yes I was paid a small amount of money sporadically over the period from May to December but the total amount I was paid was only 4500 so WorkCover has simply taken that amount and divided it up into the weeks I worked and thus it equates to them awarding me 150 per week. This is because my employer has destroyed all documents relating to my pay and so all I have is 1000 emails showing me in my day to day role from June to December and witness affidavits from former employees and my business card. I have forensically tested evidence submitted to workcover and proven that it was fraudulently made up by my employer and still they do nothing about this or anything else.
I guess I am just looking for a little reassurance from anyone that may have been to a mediation at QIRC . Are they like workcover and QCOMP and compltley blind to common sense or do the commissioners actually look at the fact that I have been ACCEPTED by both WORKCOVER AND QCOMP as A FULL TIME EMPLOYEE OF THE COMPANY and in the absence of pay slips or employment contract but using the witness evidence of the payroll lady and the other former employees including the witness to the oral employment agreement being made are they able to apply a correct weekly wage or do they rigidly stick to the old argument that all I got paid was 4500 over 7 months so that IS my Normal Weekly Earnings???? The reason I ask this is because if they do not alter the wage then what a massive loophole for employers. All they have to do is not pay any workcover premium for the employee not report the employee as an employee to the ATO and then if the employee gets injured then all they have to do is deny that the employee worked for them and they can get away with not paying the employee wages and WorkCover can get away with not paying the correct weekly rate of benefit.
Does anyone here see this absolutely HUGE loophole and does ANYONE have any case law where the employer has failed to keep its records correctly?????
As usual I am so very grateful. Unfortunately I am up in court next week and I have no choice but to self repesent. I simply do not have any money for a lawyer but what I do have is the truth on my side and also proof of my employer changing his story multiple times and even ADMITTING what my weekly salary was to WORKCOVER. This is where I am stupified. He admits what my salary was and WOrkCover pays me only what I actually received in my bank because my boss withheld over 50 grand in wages as part of a relentless bullying campaign.
Please help otherwise pretty soon I will be moving into a cardboard box out the front of WorkCover with a sign that says.
“I am an injured worker and this is where I can afford to live with what workcover is paying me for my sick pay while I try my best to “Return to work”
I wonder how many news reporters would like to record that for their programs??? what an utter disgrace of a system
I am sick of being tired and tired of being sick. But I will not give up my rights. Not ever.
Please help me any case law would be so helpful about employers not keeping wage records properly and underpaying staff.
Thanks again
And seriously, I have been in court numerous times – don’t be intimidated just speak from your heart – you don’t have to attempt to be smarter than the other side – believe me, I learned a long time ago – be honest and sincere and don’t be afraid to talk about your distress and if you feel overwhelmed tell them up front that is how you feel. You’d be surprised at just how empathic magistrates can be as well as sympathetic to your position.
Hi Sarah
Surely there is a legal firm willing to represent you on a ‘no win, no fee’ basis? I would sincerely recommend vigorously pursuing this line. By all means do the best you can if you are unable to find someone. I also recommend, if this is the case -, that you not become too bogged down in case law (that may only muddy the water) – just present the facts in plain and simple language – those hearing the case are quite capable of translating and interpreting the simple facts of your case – they can often smell unethical business practice from a mile away. You are not a solicitor nor do you need to pretend you are one. Your circumstances will not be new to the courts and they will often offer advice on how to proceed once you get to court and explain your circumstances.
Something does not add up here. You are saying you received only $4500 over a 7 month period, whilst in the role of senior manager? So, before you became injured, you also were not paid as should? If not, why did you not go to Fair Work?
Employer fraud is rampant. There are quite a few horror stories on this blog and on the forum of injured workers who’s employer cheated – in one such a case the employer also destroyed the employment contract and the payslips, however by miracle the ATO had it all on record. Other have been able to prove their income via bank statements (before and after injury statements).
Here is another case: http://aworkcovervictimsdiary.com/2012/05/employer-workcover-fraud-and-manipulation-a-real-injured-workers-story/
However the legislation is pretty strict and usually they’ll apply your income of the previous 12 months to calculate your weekly workcover pay. In my own case, for example, I was undertaking a masters degree (at mature age) during the year I was severely physically injured. I graduated 2-3 weeks after my accident. Because I was studying I received 1 day per week paid study leave from my workplace (sponsored) and was paid for 4 days/week normal work. However, when they calculated my weekly pay they only based it on my 4 days work per week, the paid study day did not count. This was a massive pay cut, in addition to a drop to 75%… Also I managed to return to work for a few years, and even retrained. I obtained a very senior position and in fact my salary had almost doubled (that is my pre-injury salary went from K57 to K84). My injury unfortunately got worse and worse and in the end I was deemed unfit for the forseeable future (forever) based on disability and I had to go back on workcover. Whilst I had been earning at least K84 (base salary) for the 2-3 years before being certified totally unfit, workcover refused to adjust my weekly pay accordingly and I was back on the pre-injury wages, minus the study day and at 75%. Basically just around K28 per year and damn hard to live off.
Anyway good luck and let us know how you go.
A “Gavin” and a “Craig” emailed us stating they can’t “read our website/blog” – Our site recently stopped working with Internet Explorer! it works fine with Firefox (probably the best of the best especially for our forum features), with Google and Safari. The site also works on iPad and iPhone! We suggest you check your computer and update your browser, best to Firefox!
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Hope this helps.
Note: Re our forum – sometimes our spambot may be to rigid and reject genuine injured workers’ applications for registration with our forum based on weird/suspicious email addresses Should this happen to you, please email us and we’ll fix it immediately!
Hi Sarah
Seriously there are heaps of no win no fee lawyers out there and I have to tell you the one I have in Victoria has been brilliant. You really should get some help from a professional as they really know how to help you.
Good Luck
As posted by Al here – all please help us advise Al.
Hi my situation/work related injury is on going and has been since 8/3/2005. I suffered a stress related injury and am still being treated for it.It’s called conversion reaction disorder.I’ve had been diagnosed with this disorder from specialists known in Melbourne for their expertise.Although it’s a physiological injury physical injuries have also been diagnosed by the numerous specialists that I have seen.In recent weeks I have been bullied/Harrassed by my work cover insurer to under take return to work program.She had wrote to my GP asking him for permission for me to do so,with out disclosing medical reports from a forensic physchitrist who bluntly stated under no condition in both mental and physical means that I should under take any sort of return to work programs in any capacity.
Guess who is the insurer, yes you guessed right Allianz.I have told my lawyer about it and he stated,”Are you sure the treating doctor specialist Qouted this in your report”?.I stated to my lawyer yes he told me so.I was then told by my lawyer he will ring my senior case manager and tell her that I’m not fit for any such return to work program as mentioned above and requested for my report to be forwarded immediately.Since he’s intervention I have spoken to two other case ,managers because of her absence from her work apparently due to maternity leave associated matters and they could not disclose my report to me until she came back to work. I broke down with a severe panic attack and was asked by my GP to take a diazepam which is one of my medications prescribed to me.
After I settled down I phoned back and verbally told another case manager for my report to be sent to me ASAP or I will take further action.He agreed to my request and told me it will be forwarded to me within ten working days,and to settle down as it is not the end off the world so to speak.I also told him I requested this a week before my appointment with the specialist and was ignored several times after as well for this report.It was obvious that they were hiding something from my GP and lawyer as well as my rights for the report.On receiving my report it contained written information that I stated to my lawyer and am now considering legal action against Allianz Insurance PTY LTD.
Since this took place she again sent me forms to fill out for occupational rehab assessment.I am now wondering if my lawyer is acting properly on my behalf and question whether I should approach a second opinion on my situation.Could some body please help me in regards to my rights.
Kind Regards
Al
Dear Al, did Allianz sent you to an independent examiner (IME) and if so, what did the IME report – was there anything in the IME report that said you had any capacity for work? Also, what state are you in?
Hi Arlan,
I am really sorry that this has happened to you. I would suggest that you write to the Ombudsman and give them your Doctors report that has stated that you are unable in any state that you are unable to do any form of work and that you have no capacity, and that Allianz are further bullying and harassing you to do so. Every notification that anyone does has to be investigated. Take a stand and report!
Hi I’m due to go through a medical panel as told by my lawyer,this only took place after the other party told my lawyer that they would prefer to do so as my lawyer/QC lodged a appeal to the supreme court.This was done on the belief that if a physical related injury with mental related side effects was deemed ok for lump sum benefit ,why can’t the opposite be deemed legible for a lump sum benefit.
My lawyer stated that the other party/former employer knew going to the supreme court would find it that would be the case.I was told that if it was found in my favour, it would be the first time in medical history that a health/government legislation would be over turned and re-written because of this one fact mentioned above.I do believe this is the main reason why Allianz is bullying me to get me at any circumstance back to any sort of rehab program which would warrant me not going to a medical panel fearing the worst “paying me a lump sum” and any on going medical expenses for the rest of my life if deemed necessary. I am a fighter and the 3&1/2 years of harassment,bullying,stress,and most of all exploited to the point where my mental and physical state broke me down and being admitted to a nuro ward with the belief that I suffered a stroke because of what happened to me.I WIL NOT GIVE UP.
I spent two weeks in hospital under going numerous tests with the end result being confirmed no organic structure to my illness,which was a great relief.It was found by one of the leading consultant neurologist along with forensic physiologists that my disorder was caused by work related stress,mentioned above.every doctor I have seen have confirmed this and have agreed this was the cause of my disorder.My condition is also called hemi paralysis which my whole left side is effected. I wish I had some one like Erin fighting for me,I’m exhausted and have tried to take my life three times but failed only to wake up after trying to overdose on my medication.I was a well known chef but now am terrified to even go into my own kitchen as it all comes back to me and can not sleep for days.
Thank you all for your feed back and suggestions. I really appreciate it. This is my world at present which is driving me crazy.
Kind regards
Al
Dear Al, I am just speechless reading your story and can only begin to imagine what you have and are going through… My thoughts and karma (for I don’t pray) are with you.
In a way, the fact that you have been referred to a Medical Panel may be “good” and the best option in your difficult case.
Referring a matter to the Medical Panel is one of the ways in which a dispute with WorkCover can be resolved. A matter can be referred to the Medical Panel by:
Read our article for more info about Medical Panels: http://aworkcovervictimsdiary.com/2012/06/medical-panel-or-a-judge/
From my own experience with Medical Panels, I can say that I have been overall very impressed with those doctors’ professionalism, expertise and honesty. There is nothing to fear and you are likely to obtain “justice” (the level of impairment rating) you deserve.
The psychological guides
Under the WorkCover legislation a psychological impairment must be assessed in accordance with the Medical Panel Guides for the Evaluation of Psychiatric Impairment which was developed by psychiatric members of the Medical Panel Victoria. The impairment assessment methods consider a number of levels of psychiatric or psychological functioning including the following:
Under the WorkCover legislation an assessor is, however required to ignore, for assessment purposes, any psychological impairment that it is ‘ secondary ‘ to physical injury. This effectively means that where someone is injured in a traumatic incident, the assessor can take into account that component of the psychological condition which comes from the event itself (e.g. post-traumatic stress disorder) but must not take into account any psychological condition which is due to having sustained a physical injury. This is a highly artificial distinction which cannot really be quantitatively assessed. Nonetheless psychiatrists will make an apportionment under these Guides.
In order to be eligible for an impairment payment it is necessary to obtain a whopping impairment score of 30% ‘primary’ psychiatric impairment. A primary psychiatric impairment can be combined with a physical impairment for the purposes of reaching the 30% threshold for common law damages claims.
We have a good article about Medical Panel Psychiatric assessments – please read it carefully so you can prepare yourself as best you can!
It’s so good to see you are fighting and, as Erin Brockovich (who watches and supports our site) would undoubtedly say to you – KEEP KICKING BUTT!
Please let us know how you are going. And, may we invite you to please register with our forum – a great place to meet and interact with some great injured folks!
As posted by “Julie” via email:”
Dear Julie
Thanks for your email- we have taken the liberty to post your (good) question here so that many more injured workers may potentially benefit from the answer.
We assume that you are located in Victoria.and that your injured partner’s weekly payments were ceased based on past 130 weeks and based on a capacity for work (however small) (the online Law Handbook (Vic), also has a very good, clear and detailed section about weekly payments and all other benefits) and that because of that he is on centrelink payments.(?)
If he is on weekly payments then the insurer may try and stop it after 130 weeks (in VIC) if he has a capacity for work, however minute.
When an injury is permanent and has stabilized (as bad as it will get) you can a lump sum payment. The amount depends on the percentage permanent impairment the injured worker has, as assessed under the (shitty) AMA 4th edition guidelines. An example:17% whole person impairment from a disc injury (10%), gastric ulcer from medication (3%) and surgical scarring (2%) $33,375. So not much indeed and many seriously injured workers get much less even though they may never be able to work again.
With re to Centrelink it is true that Centrelink, when you sign up for benefits (before you have a lumpsum i.e. if weekly payments are ceased after 130 weeks or if your claim is rejected), makes you sign a disclaimer that, in the event that you get a lumpsum, you will pay back the amount that Centrelink has paid you (could be all of the lumpsum). However when you seek legal advise and representation/help for your lumpsum claim (which you MUST do). your lawyer will take on your case on a no win no fee basis. Usually there is a “flat fee” for the lump sum claim (we think around $2500-5000) or a percentage but in any event it will be part of the “lumpsum” and you would not have to pay this legal fee money to Centrelink.
The “big” money (compensation) lies in a damages claim, aka a common law claim. however in Vic you need 30% total body impairment (HUGE) and be able to prove negligence (at least to some degree on behalf of the employer). You can then claim for pain and suffering – that amount is capped to around $500,000 (for i.e. a paraplegic,quadriplegic). If you can prove a 40% loss in earnings you may be able to claim economic loss, this is capped to around $1 million.
Most serious injured workers do NOT meet the criteria for a damages claim in Victoria. That is another reason why the system sucks.
However receiving a lump sum does not mean that you weekly payments cease nor your medical treatments (accounts). So if you are on weekly payments you can stay on weekly payments provided that you have NO capacity for work for the foreseeable future (indefinitely) after 130 weeks.
If, on the other hand, you receive a common law damages claim and included is economic loss your weekly payments will stop.
Note we are not lawyers – this is guidance info -so best is to seek decent legal advice!!!
“Why has my comment/story on bing search results?. It’s been made public for all to see.I’m not afraid of this but you or no one else told me this would occur.Please explain to me why this has happened.And how I can I take it out”
This is also the reason why a workcover victims diary has a blog, so that our voices can be heard publicly, so that all the people in Australia (and the world) can see and judge for themselves how injured workers are really being treated and how the real workcover system really works. It helps us expose the scams and dirty tactics used by the workcover insurers, the flaws in the legislation and it certainly helps us to show that, for example, cutting off compensation benefits is not the answer…
We can, if you want change your nickname “abc” to another nickname or if you really want you can delete your comments (but we urge you NOT to).
Also see our disclaimer
During a job application, are they allowed to ask if you have ever been on workers comp? It was a compulsory question in an application recently filled out.
Received via email from “M”:“just done a concilliation after 6 months with prolapsed disc scared about going ahead with medical panel after ime was so ridiculously wrong?”
Referring a matter to the Medical Panel is one of the ways in which a dispute with WorkCover can be resolved. A matter can be referred to the Medical Panel by
Any issue referred to a Panel must be a ‘medical question’ as defined by the WorkCover legislation. Where there is a major factual dispute, this issue may often not be referred to the Medical Panel as it is more difficult for the Panel to decide factual disputes.
When a matter is referred to a Medical Panel for a decision to be made, it primarily involves a full medical examination of the claimant to the extent relevant for a claim. The Panel will be made up of a number of Medical Practitioners which will usually reflect expertise in the different areas of injury that a claimant has specified. Medical Panel doctors display a high level of independence. Their medical examinations tend to be very careful, professional and exhaustive medical assessments. Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds. Indeed many claimants 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.
It is possible for a claimant, 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.
The way in which a claimant presents a Medical Panel examination is extremely important. It is only natural for a claimant to think that they have to argue their case when they attend the panel. All medical practitioners have various methods for checking the accuracy and consistency of the claimant’s presentation.
It is important to resist the very natural tendency to want to make sure that the Panel understands the full scope of the effects of an injury. What the Panel is interested in, is the careful and precise analysis of very specific symptoms. A very accurate description of the symptoms, presented without any embellishment will mean that the Panel will conclude that the claimant is reliable and honest. It is normal for specific injuries to have symptoms in a very specific anatomical pattern. For example, the distribution of pain in a leg from a back injury usually will be quite localized depending on the level of the disc involved. Simply, asserting that the entire leg is sore will not be as effective as giving a very precise and accurate description of the specific areas affected.
There is no real reason to be afraid of medical panels as they are much much more objective than the many biased independent medical doctors (IMEs). There are usually 3 to 5 doctors on the panel and they have to examine you very thoroughly (takes 1-2 hours usually). They are usually much more sympathetic and HONEST.Their opinion is also legally binding.
However there is one big problem with the Panel as they are bound to assess injured workers for permanent impairment using strict and outdated AMA guidelines (in Vic and many other states it is the 4th edition). In this edition pain for example does not rate. (see article)
Hope this helps
Read more
http://aworkcovervictimsdiary.com/dealing-disputes-workcover/
http://aworkcovervictimsdiary.com/2012/06/medical-panel-or-a-judge/
[please not it's best to post your questions here as we are unable to individually respond to the many emails we receive and it's good to share your questions & answers with fellow injured workers]
We just received a question via email form “V” worth sharing with all:
“I live in Victoria and I have a question. If a work cover claim is rejected, does the injured worker then go back and use up accrued sick
leave?
Thanks”
———————–
Hi V, thanks for your email.Given that this is a good question we have taken the liberty to answer it here so that it gets added to our “FAQ” database.
If your claim is rejected, you probably have no option but to continue to take your “nornmal” sick leave.
However, remember that you are entitled and have the right to appeal workcover’s decision not to accept your claim! The first step would be to lodge a conciliation request (within 60 days of the date of your rejection letter).
You can read about the conciliation process (disputes) on our FAQ page here.
Hope this helps and please KICK BUTT!
We received the following question via email:
My employer threatened me with disciplinary action if I didn’t sign an authority to give them access to my medical records, I refused via
email 5 times. I ended up applying for TPI and received it within weeks and my employer sent me a ” we no longer require your services
letter” What right did they have to make this demand?”
————–
We do not believe that the employer is allowed to access your medical records, certainly not without your consent and that it is inappropriate of them to try to do so. They ought to be dealing through their insurance agent, or are they self-insured?
Whilst privacy laws vary slightly in the states, most states ask injured workers to sign a disclaimer upon filing a workers compensation claim.
You can read more about the health records act and patient confidentiality in Vic here
You ought to ask your employer for a reason (in writing) for the termination of your employment. Depending on the reason you may be able to lodge an unfair or unlawful termination claim with Fair Work or the Equal Opportunity & Human Rights commission (Vic) or in your state.
Before you do so, ensure you obtain legal advice as this may interfere with your common law claim.
Also see our post: medical assessment for long term injured vital, which covers ‘sacking”
Does my employer have to hold my job open?
The WorkCover legislation requires your employer to provide you with suitable employment (if you remain partially incapacitated) or equivalent employment (if you have recovered) within the first 12 months of your absence from work – in Victoria (the time varies from state to state). Technically the failure to offer this employment is an offence against the WorkCover legislation and your employer can be prosecuted for breaching the section. Only WorkCover can launch a prosecution and if you have not been offered suitable employment you should report the matter to the WorkCover compliance branch by phoning 96411555 Unfortunately this part of the WorkCover legislation it is quite toothless as prosecutions by WorkCover are very rare and an employer can escape any penalty if they can show that offering suitable work would cause them ‘ unjustifiable hardship
Can I be sacked while on WorkCover?
There is no specific law in Vic that prevents an employer sacking you whilst you are on WorkCover. It is however an offence for an employer to sack you solely because you have made a claim. Sacking you whilst you are on WorkCover (or even after you have returned to work), may be an unfair dismissal or disability discrimination. If you are sacked whilst on WorkCover, your payments will continue provided you remain incapacitated. Payments can be temporarily suspended if you receive termination or redundancy payments
Also see all you need to know about unfair dismissal
Received via email:
“Hi, I came upon your website while trying to find any legal precedence
under workcover for my husband. At the age of [young] he has had a massive stroke which has left him permanently disabled. In the months prior to the stroke he had actually given his resignation to his employer due to unreasonable expectations and unrelenting stress. The owners
decided that without his management they would sell the business and asked him to stay on until the business was sold. He agreed but unfortunately the pressure/stress increased dramatically &, we are
convinced, resulted in the stroke. The only risk factor they could find when he was hospitalised was high blood pressure. We would have plenty of information supporting the pressure & stress but are having trouble finding any or under what circumstances stroke may have been
covered in the past. Any ideas where we could look???”
—————-
As the workers comp legislation varies from state to state you need to let us (and our readers) know in which state you are located.
If work has caused a disease or made a a pre-existing (and even non-work related) disease really worse, compensation is payable. The number of diseases that can be covered by WorkCover is large and includes (in VICTORIA):
Cancer conditions
Heart attacks
Strokes
Industrial asthma and other lung conditions
Infectious conditions such as Q fever
Psychological conditions
If you think work made your condition worse, contact a lawyer (i.e. Shine Lawyers) to discuss making a claim.
http://aworkcovervictimsdiary.com/box/what-injuries-are-covered/
In Victoria, for a “heart attack injury” or “stroke injury” disease contracted in the course of employment and the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease after 2 December 2003, it will always be necessary to show that employment was a “significant contributing factor” to the injury. The phrase “significant contributing factor” is defined in section 5(1B) of the Act. To determine this, a number of factors are taken into account, such as the duration and particular tasks of the employment, hereditary factors and the probability that the injury would have occurred outside the employment. (see: http://www.lawhandbook.org.au/handbook/ch18s03s02.php#Ch131Se58575)
It will also depend whether you are under regular workcover (i.e. Allianz, Xchanging, CGU,…) or under Comcare
Claiming for stress: see: http://aworkcovervictimsdiary.com/resources/faq-workcover/can-i-claim-for-stress-under-workcover/
A landmark legal case but about a heart attack (could be applied to stroke) can be found here
You can also do a search on legal cases using the tools (links provided) to case law links here:
http://aworkcovervictimsdiary.com/resources/work-injury-court-cases-and-judgements/
Our best advice would be to immediately seek legal advice – if you don’t know where to start give Shine Lawyers a go, they come highly recommended (see right hand side side bar).
Hi just following up on our original inquiry, the workplace was located in NSW. I am aware that there are currently changes underway that may affect claims involving stroke/heart attack. We have been advised that our starting point is a visit to a neurologist, whose support – we assume – would be critical to our claim. I don’t want to appear to be browbeating a specialist or appear to be telling him what we need to hear, any handy tips on how to deal with such specialists appointments. My husband is unable to speak and as such I will be required to talk for him, should I have the anecdotal evidence of the workplace stress prepared for this visit??
Hi Jacinta, yes the new draconian NSW workers comp laws are now in line with the Victorian law re heart attacks and strokes:
“Limits on claims for strokes and heart attacks
Heart attacks, strokes and injuries relating to these will not be covered unless the nature of the employment gave rise to ‘significantly greater risks.”
So, evidently, you will need to be able to provide clear evidence and a clear link between the your husband’s most unfortunate stroke and his enormous stress endured at work, especially in the months and week (an days) leading up to the stroke.
Our best advise would be to try and remain un-emotional (as best you can under these terrible circumstances) and factual. Given that your husband is no longer able to speak (how awful!) any and all evidence you have will help, such as diary entries, witness statements (i.e.meetings, relatives, GP visits, complaints verbalised such as stress and symptoms i.e red in the face, headaches etc).Also include that your husband did (plan) to resign from the job because he could not cope with the stress of it and if you have evidence of this somewhere (i.e GP, witnesses, hospital records….) it will all certainly help a lot.
Another suggestion would be that you contact our buddies at the Injured Support Network in NSW. They also have a preferred fantastic rehab service provider called the Workers Health Centre (who is WorkCover registered but does not bend under their unethical pressure!). They may just be the right people to know of a decent neurologist AND cardiologist you ought to see to get your husband assessed in an ethical manner.
Obviously, when you lodge a workers comp claim, the insurer’s next step will be to send you to an insurance doctor (so called “independent medical examination”). We all know that 7 out of 10 are highly biased and are merely hired guns who dance at the tune of the insurer (deny claims).
We do have a lot of articles on our blog covering IME examinations and what you can do to “protect” yourself. Just use the tag IME in the search box or click the coloured “tags” and choose “IME”.
A good article about IMEs and how to protect yourself can be found here.
Another one can be found here (video) with links to many others.
Hope this helps a bit.
Our thoughts and hearts go out to you and your husband at this tragic and most difficult time. Please, please do not hesitate to contact us if you have further questions. We are here to support you as best we can.
wcvictim (Lisa)
Jacinta, according to the Unions NSW latest update re the new workers comp laws in NSW :”If your heart attack, stroke or disease injury happened before 19 June 2012 you will be covered.
If your heart attack, stroke or disease injury happened on or after 19 June 2012 you may not be covered as definitions have changed. Contact your union (or lawyer) to get advice about whether your injury fits the new definitions.”
I think we all agree with the superlative service we’ve received from Allianz (NOT), but what experiences have people had with QBE?
Received this query via email from “S” overnight:
” Hi, I’m currently on med leave from Govt Dept due to bullying by Mngr.
I have exhausted all leave and in two weeks will be without income. I gave my COMCARE forms and supporting docs to my Employer nearly 5 weeks ago now and they still haven’t sent them to COMCARE. Any advice appreciated.”
S, you should be able to find out from Comcare (tel or website or legislation) how long they have to process your claim. For example in Vic they have 28 days…
On the Comcare website it says that to lodge a claim you should give the form and all medical certificates to your supervisor or Human Resources section, or where this is not possible, you can send the form directly to Comcare, GPO Box 9905, Canberra, ACT, 2601. So if your employer refused to lodge the claim, perhaps you should forward it directly to Comcare with a letter explaining that your employer refuses to do so.
The legislative basis for the Commonwealth Government’s compensation scheme is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
Comcare is the relevant government agency charged with administering this legislation. The full text of the legislation is at:
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation Regulations 2002
A good question as received via email from “Annie”
Before I found your blog, I thought that the bullying of an already injured work had to be a new “all time low”, but sadly, I have found by reading your blog, is actually commonplace and seemingly par for the course for most, if not all, injured workers. It is very distressing to read the stories from your readers, and yet with the shared experience, we have an opportunity to unite and fight to change this horrendous system.
The exploitation and further injury of injured workers is appalling. I would like to offer you my ongoing support of your project and also am wondering if you have any other ideas of how as a large group of injured workers, we may be able to collectively lobby the Victorian government or approach the media with our collective harrowing experiences.
I believe that this entire system needs to be brought to the public’s attention and that now is the ideal time, considering the recent “brodie’s law” and also the parliamentary inquiry into workplace bullying.
Could you let me know the appropriate members of parliament to forward my grievances to?
I look forward to hearing from you soon.
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Ahhh…well…that’s what we and countless injured workers have been trying to do now for the past 9 months… and that is the very reason why this site exists in the first place!
Many letters have been written to the Minister of WorkCover, and many letters have been replied to with typical empty content (template answers).
Erin Brockovich has personally visited me and supports our cause very strongly and I have been to and in the media(and continue to do so). John McPhilbin, our prized NSW co-author lobbies daily and emails both the media and the NSW government,…we continue our fight.
Sharing real stories and experiences does make a difference (so we have noticed), it raises awareness and shows the public and the government what is really going on. The more hard evidence we have the better – that is also why Erin Brockovich urges any and all injured workers who have/are being ill-treated to speak up and YELL. Silence is just NOT an option anymore.
A good starting point for info, links, updates specific about bullying and harassment is the Progressive PSA.
Perhaps with Gillard’s inquiry into bullying there may come forth better regulations throughout all states… but I am afraid to say that at this stage our pleas tend to fall on deaf ears.
John may have some better ideas, having been down that pathway himself… and is a well recognised whistle-blower.
Any suggestions welcome!
Received via email from Xchangingvictim:
Hi, I am hoping someone may be able to help. I have had weekly payments and medical and like terminated by xchanging based on an IME report that states my injury is now degenerative not work related. I have been advised to go to the medical panel. The IME says the only info he read beforehand was my CTscan and MRI which I gave him. He says I have a capacity for certain jobs that “she faxed through a description”. I didnt. The report is full of lies and mistakes all of which I can back up.Dates and treating doctors are incorrect. He must of had some previous history given to him though as the report includes information he didnt talk to me about. Questions have not been answered, most of my present complaints have been left off the report. Can any one give me advice on the best way to have the correct information presented to the Panel. Should I write a statement to the board or can I request under freedom on information the the report be amended?
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The first step to appeal your termination of weekly pay and medical and like expenses would be through conciliation. The dispute procedure varies slightly from state to state. If you are located in Vic you first need to lodge a conciliation withing 60 days of the termination letter. The Conciliator will then decide whether the matter can be referred to a Medical Panel (most likely) or will issue with a certificate of genuine dispute so you can go to court.
We would also advise to you seek legal representation, if you don’t know where to start check out Shine Lawyers whom we highly recommend (see right had side bar for details).
You are usually unable to have IME reports changed although you can try by writing a complaint to your insurer and adding the missing info…
When you go to conciliation you will be able to sumbmit as many medical reports as you like from your own treaters.
Same for the Medical Panel – provided you get referred by Conciliation (or Court).
To read more about the dispute procedure click here.
More about Panel or judge click here
Related: http://aworkcovervictimsdiary.com/2012/06/workcover-terminates-payments-conciliation-or-medical-panel/
Recieved via email from “A”:I would like to join the forum and I read the suggestions regarding not to disclose private information and specifically regarding using an e-mail account created for this purpose.
Can I create a temporary (like those that will expire) e-mail account just to join the forum and then I will use my current e-mail address to interact with the forum?
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We recommend you sign up with a specifically created gmail or yahoo account – those email accounts do NOT expire and you should not change them to your own personal email address. Why not? Just in case the forum gets hacked into, you do not want your personal email address available for spam, phishing, spying, wahetever!
We are very proud to let you know that we truly believe we helped an injured worker finally have their workcover claim accepted, after two and a half years being messed around with and made SICK. The injured worker had ample evidence of serious bullying in the workplace and consequently suffered a significant psychological injury, which was undoubtedly made much worse by getting the run-around by the employer and the workcover insurer who refused liability. After perusing all the hard evidence we received from the injured worker – whose case was listed for a hearing – we wrote to the insurance company and basically told them that our intention was to fully publish the material/evidence for all to see, as we believed it was inconceivable and outrageous that liability could be denied with so much HARD evidence. We did not receive a reply, however, a few days ago, the injured worker informed us that suddenly their claim was accepted… It took 2 and a half years!
We are convinced that we (aworkcovervictimsdiary) are gaining solid leverage and power, thanks to our popularity. So thank you all!
We received a private and confidential email from an injured worker regarding our article back in April where the NSW government really mis-represented two workers compensation cases (studies) to make it look as if injured workers are ripping off the system and costing millions of dollars.
Those 2 cases were:
Case Study One
A worker reported suffering glandular fever in 1991/92 and was incapacitated for three months. Several years later, the worker reported being generally unwell for several months with flu, bronchial asthma, sinus problems, sleeping difficulties and poor diet as a result of the glandular fever.
In 2001 the worker submitted a workers’ compensation claim for chronic fatigue syndrome due to the excessive hours and stress experienced at work in 1995/96.
The worker travels more than 1,000 kilometres to see the treating doctor based in another state.
The worker claims interstate travel costs to see their treating doctor, domestic assistance, lawn mowing, multiple weekly physiotherapy, chiropractic therapy, psychiatric therapy and exercise physiology.
More than 10 years after making the claim, the worker continues to receive the maximum weekly workers’ compensation benefits, even though working part time in a different field.
TOTAL COST TO DATE = $657,039
Case Study Two
A worker suffered a minor injury more than two years ago while driving over a pot hole and was deemed “totally unfit” for work.
The worker has become a recluse and is deemed by the nominated treating doctor to be completely consumed by the workers’ compensation claim.
At a recent case conference, the worker was deemed psychologically ill as a result of an obsession with the claim.
The doctor feels the claimant needs to get out of the scheme to improve their health.
The claimant still receives workers’ compensation.
TOTAL COST TO DATE = $195,000
The injured worker noted in his email to us that we ha suggested it might be worthy of a complaint to the Privacy Commission. He is most interested to hear your views as he thinks
he may well just do that because 1. He doubts the amount being cited 2. The insurer keeps initiating legal disputes and losing them – costing around $ 100000 in legals and medicals
——————–
To respond: we do know of an injured worker based in NSW who wrote to the NSW Government about this two cases. First of all the injured worker wanted (we believe) to obtain the genuine facts surrounding these two cases as they certainly appear to be very mis-represented. The injured worker also expressed concerns re breach of pricacy has s/he felt (rightly) that there was enough detailed information of those two cases for the affected person to be identifiable, which would consist of a major breach of privacy. We believe that the injure worker was basically told by workcover NSW board (and GIPA) that it was none of his business as it (the cases) did not affect him (they were not about him).
We do know that the injured worker is still pursuing the matter and we have asked him/her to please share his/her correspondence/information and/or suggestions.
What was clear from the injured worker’s letter received was that if YOU are affected (if it’s about you) you have the right to pursue the matter for privacy breach.
Hope this helps a bit.
I have been on workcover for five years with a back injury. However i have never taken a day off work what i do is work through the pain
when it’s real bad. If i take a day off can i claim for that day? (received via email)
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Of course you can and must claim workcover for any time off you need for your back injury. Simply visit your doctor and request a certificate of incapacity for workcover and submit it to your employer (who will forward it to your insurance case manager). You should not need to take your own sick leave for a work related injury. However you must note that your pay for those days may drop (the amount varies from state to state and according to the total amount of weeks you have had off since the injury). You also need to be aware that in some sates they will cut off weekly payments after a certain time if you have a work capacity. For example in Victoria if after 130 weeks you have a work capacity, no matter how small, you are no longer entitled to weekly payments. So best check what your entitlements are (with your insurer/employer in the state you are, check how many weeks you have already had off work and if you are still entitled to weekly pay).
Hope this helps a little.
Received via email:
Hi everyone, I have been injured at work around Feb this year , but my employer refused my claim as well as their insurer Allianz who are the worst kind of all . Anyways I have taken this further awaiting court hearing by a solicitor firm at no win no fee policy . My question is in worst case scenario if I end up losing the case , how much will it cost to pay for court costs as it is not covered by no win no fee policy . Also can you pay it in installments and do they accept credit cards . Thanks everyone hz
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We believe that given you have engaged a solicitor on a no win non fee basis, that if your case ends up in a court of law, you will not need to pay if you lose your case (that is the principle of a no win no fee!). It would be very bizarre to say the least why a sollicitor would take a case on a no win no fee but exclude the no win no fee if the case needs litigation!
Please check with your solicitor. If this clause truly applies to your case, we would URGE you to transfer your case to a decent non-shark lawyer (you may want to check out Shine Lawyers who do stand up for little sods like us and who do NOT rip us off).
Apart from that we do not have a clue what costs are involved should you have to litigate on your own (pay costs), but imagine that costs would be staggering, considering that you would need not only a sollicitor but also a barrister and then pay for the court (time). Best would be to contact which ever court you would be attending (Federal/Magistrate/ County Court) and ask.
Hope this helps.
Hi,
Just a word of caution with no win no fee arrangements. Look out for the ones that have no upper limit as well. If you win your case and the amount awarded does not cover the legal costs you could still be out of pocket.
Today was a special day for me with lawyers! I have been waiting for 4 years to get medical and like expenses. The lawyers that I engaged did never answer calls, could not remember who I was, never replied to emails. They funded me through a package which charged a 18.5 interest, then 6 days prior to going to court they sent me a different package (yes another one) to sign. I asked for costs to date and the draw down from the funding package, yes, you guested it, never got a response. I have changed lawyers who have asked for my file from the past lawyers and of course you guest it, got no answers after 2 attempts. Today my new lawyers got an account from the past lawyers some $ 4,000.00 and I have only had a hearing. All information my family have collected, all medical legal reports, all correspondence. Yes you might well ask, what has this lawyer done! We entrust someone to act on our behalf, we go through further bullying and harassment through our insurers, try to handle the marsh of this whole work cover system and desperately try to bring ourselves out through the other end alive, then are faced with a legal professional who really does not give a damn. Be very careful who you engage! Get references, Get a friend/family member if you cannot handle/comprehend all these questions you have asked, and get something in writing. I did’nt and do not understand all the processes and god I wish that this was not so complicated that, lawyers can be left out, but we are dealing with evil people and a system that requires top professionals that do care!
@R: Most of the solicitors (not all, there are some good ones too) overcharge you without telling you what they are charging for. This is called professional misconduct. If you believe you have been betrayed by your own solicitor, you can sue your solicitor. Call the law society of NSW, legal services commissioner (or similar organisation in your own state) to start with.
Following is the details of The Office of the Legal Services Commissioner.
Office of the Legal Services Commissioner
Level 9
75 Castlereagh Street
SYDNEY NSW 2000
AUSTRALIA
This is a common problem with many claims which are not claimed against personal injury. Because solicitors must charge you according to rates advertised by Workcover, and these rates are quite low, many solicitors do not like to take cases which are not for personal injury. However, ask your solicitor to provide you an itemised bill for what he/she is charging this fee. In most cases, it comes down immediately as mostly it is overcharged. However, this is not always true. There are some solicitors who love their job more than money.
If anybody else is in similar situation, ask your solicitor to provide you an itemised bill as they have an obligation for the same. However, I advise you to be reasonable and take extreme care as this could damage relation with your solicitor.
Hi, I am an injured worker in NSW. Can anyone tell me if I can be forced to go back to work more than my pre injury hours ( 16.5 per week) under section 40?
Thanks
Chrisp
Oh dear, I have no idea, however I would imagine that they could not force you to. But saying that it would depend on your current work capacity (how fit you are) and what type of work there realistically is available I think. Say you are certified fit to work 20 hrs a week by the doctor, and even though you only worked 16 hrs pre-injury, let’s say if there was a realistic job available for you at 17 or even 20 hrs a week within you capacity and skills and medical restrictions I think you would have a hard time refusing on reasonable grounds not to take on the job. This is where your “capacity for work” comes in I am afraid.
Saying that I am not a lawyer but speak from my own experience where I have been pushed well over pre-injury hours even in RTW as pre-injury I was also studying for a masters and hence only working 4 days a week and received only for a short duration a limited sponsorship for paid study leave, which did not even count towards my PIAWE (weekly pay – how ironic!)
John posted the update on the NSW lagislation today which says: If the work capacity assessment reveals you have no work capacity or you are working more than 15 hours a week but are incapable of extra employment you may be entitled to weekly payments beyond 130 weeks and up to 5 years. In this case, the length of time you have already received weekly payments under the old system does not count towards the cap for weekly payments.
Nobody can force you to work if you don’t want. Only your weekly benefits would be reduced or stopped. If you have been working 18 hours before injury, you’d be compensated for that many hours maximum. Say if you become capable to work 15 hours, you’d get additional 3 hours of pay as compensation. However, if you become capable of working your pre-injury hours or more, your payments would stop or certainly be reduced (in the new system). In the old system there were some other considerations too, which have been repealed.