CGU workcover insurer secretly filmed a wrong injured worker for ‘surveillance’ purposes in a (fully sick and undoubtedly disguised) attempt to discredit the genuine injured worker’s workcover claim. Was it not for a most ethical Dr Timothy Wood this poor injured worker’s claim would have been jeopardised, more so as the covert surveillance was undertaken at the famous 130 week (weekly pay cut-off) mark.
The following interesting recent workcover NSW legal case, somewhat related to the Goudappel landmark case, highlights that it is difficult to reconcile how an injured worker could be considered to have made a claim for lump sum compensation without actually doing anything of their own accord, when it is the insurer (in this case CGU) who made a proactive offer of settlement…and how it affects a settlement after the NSW reforms of 19 June 2012.
We don’t know which is worse, being the target of bullying in the workplace or being bullied in the workers compensation system. For those who enter the system as a result of serious injury other than through bullying the shock of being treated with hostility is very confronting, however, for those who’ve entered as a result of workplace bullying, the nightmare simply continues.
What Becomes of the Injured Worker?writes an injured worker. I think this is a question that needs to be asked again and again. It’s also the question that the media and their bosses never ask as they are too busy chasing the vague small shadows of malingerers and rip off artists. CGU’s rip off was huge. Where is the in depth media analysis of that crime?In this insightful post, injured worker P gives her answers to the question “What becomes of the injured worker?”
From 1998 to 2003, I was employed by a Community Legal Centre. In the latter years of my employment, I was bullied at work over a long period. Initially, I did not recognise the bullying for what it was. I developed severe back pain and moderate depression. I took my annual leave to try to recover. During this time, I was made aware of the bullying meted out to a colleague and friend. I assisted my colleague in writing a complaint. I was further emotionally devastated by this process both by the distress of my colleague and because her complaint signaled to me that my workplace was losing its integrity. Subsequently, I made a Workcover claim to cover what eventually became six months absence from the workplace…
Bullied by Law: injured worker shares nightmare
My friend’s complaint was never dealt with in accordance with the policies and procedures of my workplace. In fact she never achieved a satisfactory resolution to her complaint, and 21 months later disappeared in the desert. She has never been found, and after eight years, it is hard to believe she would still be alive.
My Workcover claim was lost by the insurer, CGU, some time after I had received an initial call to me from their appointed Case Manager.
They also used a shameful “Return To Work Plan/Proposal” to further humiliate me; to breach my health privacy; and arguably to try to prevent me from returning to work when I was well enough to do so.
This proposal was prepared and sent to me on Christmas Eve by one of the Lawyers on the Management Committee. This Plan was not at all in keeping with Workcover recommendations at the time and was purely a vehicle for the expression of malice towards me. Up to the point at which I received the “Plan” and a copy of the report to the Medical Panel, I was completely unaware of the existence of this malice. In hindsight, I began to understand that exchanges with colleagues and employers that I felt some discomfort with over the preceding years were actually earlier expressions of this malice, and awkward attempts at bullying.
The Lawyer who drafted the Return To Work Plan and forwarded the offending Report to the Medical Panel also took leadership of a “Return To Work Sub-Committee”. The employers claimed that this sub-committee was established “to ensure my safe and healthy return to work”. This Committee insisted on meeting with me prior to my planned date of return. At the meeting, the Lawyer informed me that my colleagues were “upset” with me and wanted Mediation. This was the first I’d heard of any antagonism towards me in the workplace. No worker had ever approached me personally or followed any of the dispute resolution procedures laid down in the workplace Policies and Procedures. I was engaged in a professional disagreement with one of my colleagues, but believed these disagreements were resolvable. I agreed to Mediation without ever knowing the substance of my colleagues’ complaints because I had a strong belief in the necessity to mediate conflict as quickly as possible to prevent it festering.
I returned to work to what was essentially a hostile workplace. The Sub-Committee never formally responded to my critique of their Plan, nor did they ever meet with me again. On my return, my co-workers set about making me feel very unwelcome in the workplace.
As well as withholding a large portion of my weekly part-time pay – an act which added intensely to the financial problems already caused by my rejected Workcover claim, my employers only ever met with me at a “Special Meeting”, and with my colleagues present, so that I was made to feel very isolated and unheard. My employers never responded to the many letters I wrote to them seeking resolution to my pay problems, the problems with the Return To Work Plan, the problems with the Report to the Medical Panel and alerting them to my now declining mental health.
The Return To Work Plan was never formalised, and when the Medical Panel upheld my claim, the employers made no attempt to apologise for the heinous nature of the Report they had submitted to this body.
My colleagues refused to clarify their “issues” with me, saying they should only be spoken about in Mediation. The Mediation did not occur for two months, during which time the problems festered. By the time it occurred, I was already losing my grip mentally and emotionally. The Mediation was more of a group beat up. There was no clarification of their “issues” with me that had led to the Mediation. All my colleagues expressed contempt for the colleague whose complaint I had assisted. I dissociated and lost the ability to speak or defend myself. I left the Mediation in tears, just as I had left my work every day for the past fortnight.
I returned to work the next day, confused and distressed. I hoped to be able to speak to my colleagues individually so that I could work out what the problem was. I approached the colleague who had worked with me the longest. His response, that “it is inappropriate for you to approach me like this”, finally broke me. I still kept trying to work, but within a few weeks had a serious breakdown which began with a dissociative event during which I began gambling. I had suffered gambling addiction in the past and had achieved a complete remission for the twelve months prior to this event.Workcover must be the only legal system in Australia in which the victims of accident, negligence and malevolence are positioned as “guilty until proven innocent”.
If you think that Workcover is there to service the healthcare, rehabilitation and retraining needs of injured workers, and to compensate them for their financial loss and pain and suffering where their injuries are caused by criminal negligence and malevolence, then, you really need to think again.
I submitted my second claim in a twelve month period to Workcover in May 2003. In July, I was assessed by a Psychiatrist who had already assessed me for my first claim. In his initial report he stated he was unable to determine whether my psychiatric injury was the result of unreasonable workplace practices.
It was to be a further ten months before I was able to negotiate my ballooning mental illness and the Workcover system to challenge CGU’s decision.
With the assistance of Union Assist, I was eventually able to be assessed by a Medical Panel, and my claim was granted. But all of this process took ten months, during which my illness was further aggravated by poverty, lack of access to Psychiatric care, constant financial worries, escalating social anxieties, extreme seesawing mood states, pathological gambling addiction.
Injured worker “P” is hoping to eventually edit her submitted story and submit it to the Age or some other media during Workcover Week in Victoria.The voices of injured worker’s are completely unheard during that “self-congratulatory” festival of ignorance and abuse.
Suggestions for ways to make my story more readable, accessible, understandable would be greatly appreciated, she wroites.
“I’m coming out of the tail end of another ptsd, major depression episode, so still having trouble making sense at times….”
Injured worker “Pauline”, who shared her story with us last week and who suffered a whopping 30% psychiatric injury in 2006, and was “compensated’ out of the system with barely two years income to support me was blocked at all attempts to get retraining. In her story, she shares a copy of one of her letters rounding up her effort on this front. Pauline is now homeless and deeply impoverished living on the disability pension.
Seriously injured worker received no support for retraining
I chased my insurance agent for over eighteen months to get retraining so that i could return to employment. I’ve attached a copy of one of my letters that rounds up my efforts on this front. After taking my complaint to the Minister, I was sent to an employment counselling outfit.
They told me that the Insurer (good old corrupt CGU) had told them they were not to write a report and nor were they to identify retraining courses for me. After this total sham and the long battle I’d had to get that far, my mental illness became so exacerbated that I ended up homeless and pretty useless for the better part of two years. Still homeless, but seem to be getting my ginger back.
Pauline’s letter (Dated 2009)Customer Service Resolution Officer CGU Workers Compensation GPO Box 2090S Melbourne VIC 3001
Dear Z ,
Re: Injured Worker Pauline Claim No: [XXX]
I acknowledge receipt of your letter dated 22nd July 2009. I did not receive it in the post until Tuesday [day] August, hence my delay in responding. Thank you for acknowledging my concerns which I have previously expressed in writing to CGU. I have no record of contact from CGU on the [date] 2009 as alleged in your letter. Could you please send me written advice as to the form and content of that contact?
I reject the suggestion that CGU has responded to my concerns over the past few months. Apologising for a delayed response, and parroting the same false explanation over and over is not the same as responding to my legitimate concerns. If it was, my concerns would no longer exist.
I am sure, Z, that as you work in worker’s compensation services you are well aware that Worksafe Victoria defines bullying as:-
“unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. Bullying can occur wherever people work together. Under certain conditions, most people are capable of bullying.
Whether it is intended or not, bullying is an OHS hazard to health and safety.”
I experience CGU’s relational style as bullying. Furthermore, I believe that this relational style fits Worksafe’s own definition of bullying, and is therefore illegal. As I have informed CGU on several such occasions, their behaviour towards me causes severe exacerbations of my compensable condition. I have also provided reports from my psychologist and my doctor at various times to attest to the health detriments that are occurring.
As you are new to my case, however, I fear you may be unfamiliar with the history of this particular dispute. I will begin with a history of my contacts and communications with CGU so far in my endeavour to have the terms of my settlement contract fulfilled. I will relate some this history to those feelings that I have of being bullied by CGU, and I will explain how this bullying damages my being.
A history of CGU’s bullying
In late August 2008, I signed a settlement agreement with CGU in relation to my common law claim for compensation. I did this in the belief that it would be better for my health in the long run if I could take control of my weekly income away from the Worksafe system. I realised that I would need ongoing support with medical and therapeutic interventions for my injury, and that I would need retraining and employment assistance to achieve a successful return to work.
During October 2008 I contacted X whom I knew to be my Case Manager in CGU and with whom I have established an excellent rapport. X informed me that she could not deal with the matter as my case manager was now Y. I spoke with Y by phone on two occasions. I told him that I had taken a settlement, and that I wanted some assistance with returning to the workforce. I explained that the settlement was of a finite nature, that my psychiatric condition still required two years uninterrupted treatment, and that I would need retraining to help me develop a new career to suit my impairments. I was hoping to begin retraining in early 2009. I envisaged that I would do my retraining and my remaining treatment in tandem. Y promised to seek out information regarding my entitlements and to get back to me. It is important that CGU have and understand this information about me so that they can provide me with an appropriate level and type of service. However, providing all this personal history and information to a “new” Case Manager is a particularly humiliating experience for me as I have enormous trust issues resulting from my workplace injury.
When I rang him again later that month, Y claimed I had no entitlement due to the settlement I had accepted in August 2008. I knew this opinion to be untrue as I had made my acceptance of the settlement contingent upon the continuing availability of my access to employment training. I had stressed this requirement to my legal representative as a condition of accepting the settlement, and it was incorporated into the contract under Clause 3. A brief reading of that contract would have led Y to realise that access to employment training is a clear part of my contract of settlement, not something that is excluded from it as CGU claims. I wrote to Y to provide him with this advice. In retrospect, I find it strange that while Y gave me this reasoning to deny me access to support in returning to work, he, nevertheless, paid my requested refunds for other medical and like services during this period.
I did not hear from Y for some time and became concerned that time was passing and enrolment deadlines were approaching. On the [date]2008, I alerted CGU in writing of my desire to receive employment counselling to assist me in selecting a suitable career and retraining.
In that first letter regarding this matter, I requested that CGU provide me with information about any administrative requirements that have to be met in order for me to access employment services. I do not know the system and am reliant on my case management through CGU to provide me with such information. CGU did not even do this, and I was left without the information I needed to help me move forward on the matter. Weeks passed and I received no reply. I began feeling alienated and ignored. I didn’t know how to respond to this silence as it made me feel worthless, and reminded me of the bullying I had received in the workplace. My compensable condition became exacerbated and my symptoms began to manifest. I became depressed, and agitated with anxiety. The psoriasis, which had been in remission for two months, began to worsen. Other physical complaints e.g. stomach pains and wind, diarrohea, lower back pain, difficulty sleeping, arthritic joint pains also began to bother me. My daily life became more difficult to manage as I was hounded by periods of deep depression. I began to experience suicidal ideation again.
On [day] January 2009, in desperation, I wrote a second letter to CGU. I had rung my case manager twice and had discussions in which he promised to provide me with the information I’d requested in November “within the next week”. Once again CGU did not follow through on its’ promises. In this letter I informed CGU that their particular pattern of behaviour towards me was exacerbating my compensable injury.
CGU did not respond to my letter and left me feeling invisible, alienated, and worthless. This behaviour is a carbon copy of some the bullying behaviours that caused my workplace injury in the first place. When I was becoming disturbed by what was happening in my workplace, I kept writing to my employers, and calling them to tell them that my health was deteriorating. They too ignored my pleas and failed to respond to my communications.
During February, I called my Case Manager, Y., and later his supervisor rang me to endorse Y’s promise that an appointment for employment counselling would be made that afternoon. I was impressed that the supervisor had been brought in to my matter, but again the promises were followed by a deafening silence.
On March [day], I finally wrote an official complaint which I also sent to Workcover Complaints. I was contacted by the Workcover Complaints officer, A. I was unwell and don’t have full recall of my communications with A, but I do recall him advising me that once a promise is made, it has to be followed through. These promises did not become reality as CGU continued its unreasonable course of behaviour towards me.
I received a written response from CGU to all my correspondence on April [day] 2009, seven months after my original verbal requests for assistance, and six weeks after the last of three written appeals from me. This response, which was from U, Team Manager, was a continuation of CGU’s denial of the content of my contract of settlement.
Some time after, I spoke to V at CGU. V was assigned as my new case manager after Y disappeared. V refused to consider my issues. She spoke very slowly to me and continually repeated the same advice over and over. I was humiliated by this behaviour and what it implied about my mental capacity. I was also extremely frustrated by her refusal to listen to my reasoning regarding the contract of settlement and my concerns for my future if I’m unable to work. V’s communication with me proved to be a replication of the whole of CGU’s relational style towards me. Don’t listen to what I have to say. Repeat the same message over and over as if I am deaf or stupid. It’s as if CGU is trying to brainwash me, to overwhelm me with the weight of many people’s opinions. Unfortunately, all of those opinions are the same and they are all equally, legally wrong.
On July [day], I took the issue to conciliation, where I provided the documentation to show that Clause 3 in my contract of settlement does specify my ongoing entitlement to medical and like services.
CGU’s position in conciliation was cynical in the extreme. CGU’s representative, W (?), refused to negotiate and continued to hold the line that employment services were not available to me because of the settlement I’d taken.
Why continue the bullying?
And now, X, you have written to me on behalf of CGU. Through you, CGU continues to parrot that I cannot access return to work services because of my acceptance of the common law settlement. X, as a worker you cannot operate in a way that breaks the law. So here is the law regarding my entitlement. This information has cost me dearly to uncover. CGU, on the other hand has its own legal department, so the correct information should have been readily available to all those CGU employees who have been involved in my request to date.
- My entitlement to medical and like services is established under Section 99(1) of the Act. The particular entitlement that I’m seeking is “occupational rehabilitation” in the form of access to occupational rehabilitation services as defined under the act.
- My continuing entitlement to medical and like services post-settlement is established under Section 99 (13).
- My contract of settlement as supplied in conciliation establishes in Clause 3 my ongoing entitlement to medical and like services.
I don’t need you X to tell me what “pecuniary” means. I need you, as CGU’s latest assignee to my case, to respond to my request and provide me with my entitlement. The company that you work for is using its greater resource power to force me to accept this injustice. That is the behaviour of a bully. Please don’t think that because I have a psychiatric injury I must be stupid. I’m growing tired of faceless strangers speaking condescendingly to me. Please don’t add to the effects of all that I’ve described by doing some bullying of your own..
I cannot afford to pay more lawyer’s bills either, and CGU would be well aware of this. CGU would also be well aware that further adversarial engagement would continually exacerbate my condition and weaken my capacity to engage in a legal battle. I would refer you to a letter which I wrote to CGU on [day] April, 2007. In it I appealed to CGU to manage my case in ways which avoided exacerbation of my psychiatric injury. This latest long tussle over my entitlement to occupational rehabilitation is full of examples of CGU engaging in behaviours that I identified in this letter as triggers that exacerbate my condition.
It is bullying of CGU to block my access to my legitimate entitlements. It is unreasonable of CGU to make promises of service and then fail to meet the expectation that the promise has established. It is an abuse of the law for CGU to continue in this pattern of behaviour towards me because it is bullying. The availability of medical and like services is clearly included in my contract. Given that I formally supplied this information to CGU in November of last year, it is unreasonable and bullying of CGU to have blocked my access to these legitimate entitlements for this lengthy period of time.
This neglect and denial by CGU of their legal obligations towards me has caused me to lose a year of income earning capacity from my return to work plan. Had CGU met the terms of our settlement contract when I first made my request, I would be more than half way through that course by now. In addition, as I have noted in my increasingly distressed letters to Y, CGU’s processes have severely exacerbated my work place injury which always leads to intensification of a range of very uncomfortable and disorienting symptoms. I would like to know how this advice was made within CGU, particularly given that it is incorrect and that it has caused me a great deal of distress to date.
To dispute a legally negotiated agreement is adversarial in the extreme, and shows no respect for the binding power of legal contracts. CGU’s continuous blocking of my attempts at rehabilitation and return to work represents a flagrant denial of the objects of the worker’s compensation scheme under Section 3 (3)(b) of the Workers’ Compensation Act. What it shows is that CGU believe that they can succeed in denying me my right and silencing me simply by ignoring me. They can do this successfully because I do not have equality of access to the court system. Instead of taking care of me and helping me rehabilitate, CGU is continually subjecting me to bullying which has the effect of keeping me too unstable to study or to work.
What becomes of the seriously injured worker?
I signed the settlement contract with full advice from my legal representative. What I’d like to explain to you is what that settlement means in reality. The reality I’m talking about is my reality, the reality of an injured worker. This is what you have to look forward to if you get injured at work: – poverty, misery, sickness. Six years after the occurrence of workplace injury, I took a settlement of $[sum]to compensate me for a financial loss and pain and suffering that I had assessed to be valued at over $1,000,000. I did not make that choice lightly or happily. I did it simply in the interests of my health since I recognised that staying in the workcover system was destroying my health and my future. Once legal fees were paid, I received $[sum of 5 figures] net from my claim. I have been supporting myself and my son in rented accommodation on that sum of money for the past twelve months. What was once [sum]is now less than $40,000 and I am still no closer to returning to work than I was the day I took the settlement. That settlement is all the money I have apart from $10,000 in superannuation.
Prior to my work injury, I was paying a mortgage, but that home was lost to me during the early days of my illness when CGU’s denial of my claim left me without income and without adequate treatment for many months before I could successfully negotiate all the blocks that CGU placed in my way. I have no work capacity and it seems it may yet take two years before I am ready and able to work again. In order to be able to obtain employment, I have to have some training in the meantime. Do you really think it is reasonable to tell me that the compensation I’ve been given is a fair and just replacement of my loss of earning capacity for the next ten years of my life as well as compensation to me and my family for the pain and suffering that we’ve been subjected to in the past seven years?
I have personally spent thousands in pursuit of my own rehabilitation and re-education for the purpose of returning to work. Yet everything that I do to help myself get well is constantly undermined by the pointless torments that CGU calls “Case Management”.
CGU as my Case Management agent for Worksafe Victoria has a responsibility to manage my case in a manner which facilitates my recovery from workplace injury and then supports my return to work. Yet, so far in my case, CGU has acted towards me in ways that have continually exacerbated my original workplace injury. This ongoing pattern of behaviour towards me has had had the effect of making it impossible for me to rehabilitate.
-  X has been my case manager for some time, knew my illness, my particular impairments and my history. I felt safe with her and able to ring her up to discuss my progressing towards return to work. X was my first point of contact with CGU in regard to this matter. Prior to this phone call I had no notification of a change of case management.
-  Y is my second point of contact.
-  Y’s supervisor is the third CGU employee to communicate with me in relation to this request.
-  U may also have been Arthur’s supervisor. If not Anil is the fourth CGU employee to communicate with me in relation to my request.
-  V is the fifth CGU employee to communicate with me in relation to my request.
-  W who’s last name I don’t recall was CGU’s representative at conciliation, she was also the sixth CGU employee to communicate with me in relation to my request.
-  X is the seventh CGU employee to communicate with me in relation to my request.
We say shame on CGU and shame on Worksafe Victoria
Yesterday we received a “share your story” from a Victorian injured worker, whose claim is managed by CGU, and who was sent to an all-too-common- despicable, geriatric independent medical
examinator exterminator (IME). This most unethical “doctor”, a disgrace to the profession really, dared to state that there was nothing wrong with the injured worker, despite clear MRI evidence of a lumbar disc protrusion with nerve compression. He had the guts to state that the injured worker is”fit for 40 hour per week” normal duties, and in doing so is just about to destroy a person’s life and livelihood! Disgusting!
Injured worker sent to geriatric lying independent medical examinator (IME)
The injured worker’s story: in his own words
” fark cgu and fark [Dr name] of [place] this geriatic old bastard says i no longer have an injury and it didn’t happen at work. So what did happen and where did it happen.
All my doctors and specialists disagree and believe I have a mechanical lumbosacral spine dysfunction
Independent medical examinations
Unfortunately, attending medical examinations is a necessary part of a WorkCover claim. Failure to attend examinations at reasonable intervals may result in the suspension of a claim. However beware that the workcover insurer does not go on a “doctor shopping” spree, one of their favourite pastimes! Most lawyers would agree that one (to two if unstable) examinations per year is “reasonable”.
The major issue of the poor quality of – and often highly biased medico legal assessment is well described by a lawyer, who herself was injured at work, and consequently experienced major issues injured workers face with the so-called medico-legal consultants (doctors). She really wonders if these are doctors who are struck off, too old to practice, where their Hippocratic oath is and, most importantly, believes that an urgent review is needed into the medico-legal consultant industry.
Don’t be disillusioned as many of these examiners are well-known to the courts (and some are literally laughed out of court) and lawyers practising in the WorkCover jurisdiction.
Little weight is placed on the results of these examinations by courts.
Attending medical examinations can be stressful, but some simple steps will make an examination less stressful. You can find them under the keyword “IME”, for example more about IME and how to protect yourself; the dreaded independent medical examinations: a good video tutorial etc.
In other words: once you get notification (= a rejection letter) from CGU (you insurer) that your weekly payments and/or medical treatment and like services /whatever are to be ceased based on this biased IME’s opinion, you can appeal the decision at Conciliation.
Dealing with disputes with workcover (Vic)
[Note: similar procedures are in place in all states]
With the proper guidance most disputes with WorkCover should be resolved without a court hearing. Most disputes are initially referred to the Accident Compensation Conciliation Service, which will attempt to resolve a dispute in an informal manner.
How to lodge a conciliation request
Referring a dispute to the Accident Compensation Conciliation Service merely requires the completion of a simple form and sending that form to the service. The postal address of the service is:
GPO Box 251
Melbourne Vic 3001
A conciliation form can be obtained from the following;
- the Accident Compensation Conciliation Service – telephone 1800 635 960 or (03) 9940 1111
- download a form now here
- your WorkCover claims agent
The form should be completed by filling in all relevant particulars. The form asks you to specify whether anyone is assisting you with your conciliation. Generally, lawyers are not permitted to attend conciliation on your behalf but assistance is available, at no cost, from two excellent advocacy services:
- Union Assist can assist members of unions who have a referral arrangement with Union Assist. If you are a union member you should contact your union and they may be able to represent you themselves or may refer you to Union Assist.
- WorkCover Assist is also an excellent advocacy service which is independently funded by government. WorkCover Assist advocates for persons who are not union members or persons who do not wish to use a union-based service.
Both services employ skilled and committed advocates who will attend conciliation to assist you and to argue your case.
If you insert the name of the organisation assisting you with conciliation on the form this will mean that they will automatically be copied in on correspondence and also ensures that your matter will be scheduled at a time that is suitable to the advocacy service. This can be inserted as follows:
‘to be advised’
‘WorkCover Assist/Union Assist’
When completing the form you will be asked to specify the decision of the WorkCover agent that you are disputing. Normally, the decision will be contained in a written notice but sometimes it may be conveyed to you verbally by your WorkCover agent. In other cases, you may want to refer a matter to conciliation because the WorkCover agent has failed to make a decision about a particular aspect of your case- e.g. pay travelling expenses, approving surgery etc. This type of dispute should only be referred to conciliation after a reasonable period has expired for WorkCover to respond to your request. It is also useful to try and contact the WorkCover agent and request a response before referring the matter to conciliation. If these efforts are unsuccessful, you should refer the matter to conciliation.
You should insert the details of your dispute in the large box at the bottom of the form. If you have received a written decision from WorkCover that you dispute, you should include a copy of that decision.
These are a number of typical examples that could be inserted;
- ‘I dispute the decision to terminate my entitlements’
- ‘I dispute the decision to reject my claim’,
- ‘The WorkCover agent has incorrectly calculated my pre-injury average weekly earnings’,
- ‘The WorkCover agent has failed to pay travelling expenses forwarded to them on.’
- ‘The WorkCover agent has failed to approve my request for surgery which was submitted on..’
When you have lodged your conciliation form by posting it to the Conciliation Service, you will receive an acknowledgement. The Conciliation Service may also provide you with DVD which shows how a typical conciliation is conducted.
If your dispute involves medical issues, the Conciliation Service will provide you with some forms for you to sign and give to your doctors. This form requests the doctors to prepare a report on your condition and to send that report to the Conciliation Service. If the conciliation has not sent enough copies of the form you can contact conciliation and request more or, alternatively, you can photocopy the form. The bill for the preparation the report should be sent to the WorkCover Agent.
The Conciliation Service will contact you again and advise you that a date has been allotted for your conciliation. At this point, you should contact your conciliation advocate to advise them of the date and to make arrangements to meet with them. As they have been specified as your agent in the form that you lodged, they will have been copied in on all correspondence related to your matter. The Conciliation Service will also have provided to them any copies of medical reports that they have received about your matter.
The conciliator who will be handling your matter will then contact you to provide you with more information about the conciliation process.
Lawyers are generally not permitted to appear at most conciliation hearings, but two excellent and free advocacy services are available to assist you. Union Assist is an advocacy service for union members and WorkCover Assist is able to help other employees. [We HIGHLY recommend WorkCover Assist]
If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court action.
Some disputes can also be resolved by referral of the dispute to the Medical Panel. Whether or not you should have your dispute referred to the Medical Panel is a complex issue, and depends on the circumstances of your particular case. A determination by the Medical Panel is final and conclusive and cannot be appealed against except in the rarest of cases. The Medical Panel can make binding determinations on issues such as whether you are incapacitated for work, whether incapacity is permanent and/or work related.
You should contact your lawyer for advice, preferably before you are referred to the Medical Panel. In some instances detailed written submissions should be made to the Medical Panel prior to a consultation with them to ensure relevant considerations are taken into account.
Also see blog articles for more information (there are heaps more under search term “ACCS”, “conciliation”, “medical panel” for example)
- Going to a Conciliation conference for your work injury
- Resolving workcover disputes with the Accident Compsensation Conciliation Service (ACCS)
- WorkCover terminates payments – conciliation or medical panel?
- What if a claim is rejected or notice is given that weekly payments will stop?
- Medical Panel or a judge
Hope this helps, mate and thank you for sharing your story. We will be adding the name of this evil IME to our list of “Hired Guns”, which you can find in our Forum.Kick Butt!
A couple of days ago we received a question from a severely injured worker, located in NSW regarding CGU’s endless delay of her agreed permanent impairment and pain and suffering payment under section 66/67 of the workers compensation act NSW. We are hoping that someone can help us shed light on this matter!
CGU delays payment for permanent impairment/pain and suffering under section 66/67 workcover NSW
The injured workers question
I have been on workcover [NSW] for 3 years and have been battling CGU for my 66/67 payment for 25% WPI [total body permanent impairment] and it was from a complying agreement. We have been in the WCC for one year now and they [CGU] keep bullshitting with these appeals that just waste time and have no merit but they keep doing it.
Has anyone been in a similar situation and how can you get the insurer to pay you the money they agreed to pay me.
I am in NSW and it is a 66/67 which is the payment for permanent impairment of 25% and pain & suffering. I do have common law claim but I need this payment that was originally offered by the insurer to proceed with my common law claim. CGU keeps on finding anything in which they can appeal on which of course goes back to the WCC which we go there the arbitrator makes a ruling and then 28 days later CGU appeals that and so on it has been 4 maybe 5 times back to the commission.
I would have thought the arbitrator could make a ruling that they pay what was agreed not use anyway by which to delay the settlement by bogus appeals. they have lost every time we go to the WCC.Any advice will help as lawyers just keep rolling along with the bullshit excuses. Thanks
General information on permanent impairment in NSW
If a worker has a permanent impairment as a result of a workplace injury or illness, they may be entitled to receive a payment under section 66 of the Workers Compensation Act 1987.
To receive compensation, the worker will need to lodge a claim that gives an evaluation of permanent loss or permanent impairment (including any entitlement for ‘pain and suffering’). The evaluation will be expressed as a percentage loss of a given body part/system (for injuries before 1 January 2002) or a percentage impairment of the whole person (for injuries on or after 1 January 2002).
For injuries before 1 January 2002:
- payments for any permanent loss of efficient use are determined according to the Table of Disabilities
- in order to receive a payment under section 66 of the Workers Compensation Act 1987, the minimum level (or threshold) of permanent loss must be 1% or more for a given body part or system, but 6% for permanent hearing loss
- if the claim for permanent loss was made before 12 January 1997, the most a worker can receive is set out in the WorkCover Benefits Guide and is dependent on the date of the injury
- if the claim was made on or after 12 January 1997 (and it does not matter when the injury happened), the most a worker can receive for a permanent loss is:
- for a single permanent loss $100,000
- for a multiple permanent loss $121,000
- an injured worker may also have access to ‘pain and suffering’ payments under section 67 of the Workers Compensation Act 1987, if 10% or more disability (as measured in the Table of Disabilities) is present. The maximum amount payable for pain and suffering is $50,000.
For injuries on or after 1 January 2002:
- the degree of permanent impairment is assessed using the WorkCover Guides for the Evaluation of Permanent Impairment
- evaluations of permanent impairment can only be conducted by a suitably qualified medical specialist who is trained in the use of the Guides
- a minimum level of permanent impairment must be present before compensation payments are made. For permanent impairments, the minimum levels are greater than 1% of the whole person. However, for permanent psychiatric and psychological impairment there is a 15% threshold
- for hearing loss claims, a minimum level of 6% binaural hearing loss must be present
- the maximum benefit for permanent impairment has increased to $200,000, calculated in accordance with the formula in the Workers Compensation Act 1987. Necessary income support and medical expenses would continue to be paid once a claim has been settled
- an injured worker may also have access to ‘pain and suffering’ payments under section 67 of the Workers Compensation Act 1987, if 10% or more permanent impairment is present. The maximum amount payable for pain and suffering is $50,000.
Common law damages
A common law claim is made when an injured worker sues their employer in court for damages. To be eligible to take action under common law, three criteria must be met:
- the worker must demonstrate negligence of the employer or a fellow employee
- the injured worker must have a permanent impairment that is at least a 15% whole person impairment
- the claim cannot be started for at least six months after the worker gave notice of the injury to the employer, or not more than three years after the date of injury.
Common law claims are heard in the District or Supreme Courts. Initially, the Workers Compensation Commission attempts to mediate and reach settlement through discussion and agreement of all parties.
Damages are paid as one lump sum, to cover past and future economic loss only. They can be reduced if the worker’s own negligence contributed to the injury.
A common law settlement cancels all other entitlements to workers compensation benefits. If a common law claim is not successful, the worker will continue to receive workers compensation under the statutory scheme.
A commutation is an injured worker’s entitlement to workers compensation benefits paid out as a lump sum of money.
A commutation is only available under the following circumstances:
- the injured worker must have a permanent impairment that is at least a 15% whole person impairment
- compensation for permanent impairment and pain and suffering has been paid
- the worker must be entitled to ongoing weekly benefits and must have received weekly benefits regularly and periodically during the previous six months
- it is more than two years since the worker first received compensation for the injury
- all opportunities for injury management and return-to-work have been exhausted
- weekly benefits have not been stopped or reduced as a result of the worker not cooperating with the injury management plan
- the worker has received independent legal advice
- the insurance company and worker must agree with the commutation
- WorkCover must approve the commutation
All agreements must be registered with the Workers Compensation Commission.
Workers Compensation Commission
The Workers Compensation Commission replaced the Workers Compensation Resolution Service in January 2002. It handles disputes about:
- weekly compensation
- suitable duties
- medical and related expenses
- permanent impairment
- pain and suffering
- death of a worker
- payments for damages to personal property, such as clothing and spectacles
Application to the Workers Compensation Commission
Any party to a dispute can make an application to the Workers Compensation Commission regarding weekly benefits, medical and related expenses, damages to personal property, or management of the worker’s injury in the workplace. Only a worker, or their representative, can make an application regarding permanent impairment and pain and suffering.
Application forms and information on the application process are available from the [popup url=’ http://www.wcc.nsw.gov.au/Pages/Default.aspx’]Workers Compensation Commission[/popup]
There are a number of different types of applications that a party to a dispute can make to the Commission.
Interim Payment Direction (IPD)
An IPD is a direction by the Workers Compensation Commission to start payments to the injured worker. It is only available for weekly benefits, or medical and related expenses, under $5000.
A worker may apply for an IPD if the insurer has not decided or started payments, and has not provided a ‘reasonable excuse’. The application may be made seven days after the worker tells their employer that they have an injury.
The IPD does not mean that the insurer has accepted the claim, rather it is a way of paying the injured worker while more investigation takes place.
Resolve a dispute
Applications to resolve disputes can only be made after:
- the time limit for making a decision on the claim has passed and the worker has not received a decision from the insurer
- the worker has received a letter from the insurer saying that the claim has not been accepted
- the worker has received a letter from the insurer saying that they have accepted the claim, but the amount of compensation is in dispute.
Specialist doctors, called approved medical specialists, who are appointed by the President of the Workers Compensation Commission, resolve disputes about permanent impairment and other medical issues.
There are two types of approved medical specialists:
- those who resolve medical disputes about the worker’s condition, eg. the cause of injury, treatment options, fitness for employment
- those who resolve disputes about permanent impairment.
After investigating, the approved medical specialist issues a Medical Assessment Certificate – the final, binding opinion in disputes about permanent impairment.
In other types of disputes, their opinions are considered by the Arbitrator, who mediates between the parties or issues direction.
What we have found so far
The above publication shed some lights on some of the bureacracy that seems to be going on in disputes and even at ridiculous appeals…
For general information on impairment benefits in NWS, visit [popup url=’http://www.workcover.nsw.gov.au/injuriesclaims/benefitsentitlements/Permanentimpairment/Pages/default.aspx ‘]workcover NSW website[/popup]
The[popup url’http://www.austlii.edu.au/au/legis/nsw/consol_act/wimawca1998540/’] Workplace Injury Management and Workers Compensation Act NSW[/popup]
The [popup url=’http://www.austlii.edu.au/au/legis/nsw/consol_act/wca1987255/s66.html ‘]workers compensation Act NSW section 66[/popup]
[popup url=’ https://docs.google.com/viewer?a=v&q=cache:cxyE7-TP8BAJ:www.workcover.nsw.gov.au/formspublications/publications/Documents/claims_and_benefits_fact_sheet_04_1293.pdf+settlement+discussions+of+section+66/section+67+workcover&hl=en&gl=au&pid=bl&srcid=ADGEESjkzcLBUsC6gvIVkURQw688hcCBpGsrFzXESsNumenFHVF_-grmukVMjiqebAcC2LYgrxI3WR8S-rX2_mC2oYwln8sfOHPYQzutGreLh5e389nZ9ctpPQyBnppJbTxPows_VSnP&sig=AHIEtbSTPmLBy1hEcx4wOjBzNVpbsEARvw’]Claims and Benefits NSW fact sheet[/popup]
[popup url=’ http://www.workcover.nsw.gov.au/formspublications/publications/Documents/m4_claims_estimation_manual_july_%202010_update_2838.pdf’]Workcover NSW claims estimate manual[/popup]
[popup url=’ http://www.wcc.nsw.gov.au/Policies-and-Publications/Documents/E-Bulletins/No%2047%20E-bulletin%20-%20Mar%2012.pdf ‘]Workers Compensation Commission NSW Bulletin March 2012 [/popup]
Settlements under Section 66/67
For a number of months, the Commission has actively encouraged parties to engage in settlement discussions of section 66/section 67 proceedings between the issuing of the Medical Assessment Certificate and the Post-MAC teleconference. Where the parties reach agreement before the teleconference, the Commission can determine the matter by issue of
consent orders. This eliminates the need for parties to make a further appearance before the Commission to finalise the matter.
To facilitate issue of consent orders, parties may simply email the Registry (firstname.lastname@example.org) the agreed values for s66 and s67 compensation. The Commission will then issue orders (Certificate of Determination – Consent Orders) for payment of the lump sum compensation and the usual costs order (as agreed or assessed).
Complying with WorkCover guidelines when qualifying an IME
The Commission has [popup url=’http://www.wcc.nsw.gov.au/Legal-Links-and-Tools/Rules-practice-directions-and-guidelines/Pages/default.aspx ‘]rules, practice directions and guidelines on their website.[/popup]Can anyone help us answer why CGU is endlessly denying an agreed upon payment settlement?