Tag Archives: Legislation

AMA-guilelines-unfair

The current workcover system for impairment rating is not fair at all

The current workcover system for impairment rating is not fair at all. If you have read the previous post about “claiming compensation for pain and suffering” you may well have realised that our current workcover legal system is not set up as fairly as you first thought!
It is only when you or someone close to you is a victim of a workplace accident that you actually discover the VIC (and most other state) Government is denying you of a lumpsum and of the common law right of access to justice for any pain and suffering endured.

Continue Reading…

Can I claim compensation for pain and suffering under workcover?

Can I sue for damages under workcover?

First of all let’s look at the lumpsum

Physical injuries

 

 

For injuries on or after aft12 November 1997 – If you have sustained at least 10% whole person physical impairment (5% for injuries to the spine and the upper/lower limbs on or after 3 December 2003), in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th edition, you may be entitled to lump sum compensation. The following amounts are payable for injuries sustained on or after 1/7/06:

  • 5% (arm, back, neck or leg injury sustained on or after 3 December 2003) = $9,650
  • 10% = $15,550
  • 15% = $27,200
  • 20% = $38,850
  • 25% = $50,500

Psychiatric injuries

You need to have a minimum of 30% primary psychiatric injury to be entitled to a very modest lumpsum.

30% psychiatric impairment = $12,450

Acceptance of a lump sum (physical and or psychiatric) entitlement does not affect your weekly payments or medical and like expenses or your potential right to pursue a damages/common law claim.

Total loss injuries

If you have sustained a “total loss” injury (i.e. amputation of a finger) your entitlement may be assessed in accordance with the Table of Maims.

Example – Total loss of Right Index finger $47,540

Note: So if you have a look at the amount of the lumpsum in dollar value, it is actually very little money. If you think that an average shoulder injury for example, necessitating 1or 2 operations only achieves on average between 10 and 15%, well that gives you between $15 and $27.000 if your are “lucky”. That’s it! This amount of money will just about pay for the debt you have incurred because you have been on workcover wages (i.e. credit card debt), then you need to take off (exorbitant) lawyer fees from that lumpsum anywhere between $2500 and $5000 just to get to the lumpsum bit and yes, you’ve got nothing left it terms of “compensation”.

Now let’s look at a Common Law damages claim

A claim for damages, which is also called a Common Law claim, is usually the only way that substantial compensation can be obtained for the full effects of your injury.

In a claim for damages, you are entitled to claim for the pain and suffering you have and will experience in the future. You may also be entitled to claim for the income loss (economic loss) you have and will sustain because of your injury.

Claiming economic loss damages is only permitted in some cases. In order to succeed in this type of claim, you must establish that your employer or some other person was negligent (i.e. breached a duty of care to you), and that as a result you have suffered a serious injury.

What must I prove in a claim for damages?

Claiming damages can be a very complicated process. If you are injured at work, the claim will be made under the WorkCover legislation. If you are injured away from work for example, while you are on a break, the claim may be made under the General Civil liability legislation.

Under WorkCover, there are three (3) elements that you must establish to obtain common law damages. These elements are:

  1. You are suffering from a “serious injury
  2. Some other person was negligent – this can be your employer or a co-worker, and
  3. You have suffered loss and damage as a result

Establishing all three elements is essential to a claim.

These elements are best understood as three hurdles that you must pass through to succeed. It is important to remember that you must pass through all hurdles, not just one or two. This means that even if you have proven negligence and proven suffered loss and damage , if you don’t have “the serious injury hurdle” there is no point – you  as may well give up now.

Many “workers” are injured in negligent circumstances and suffer loss but they can only succeed in claiming damages if they can demonstrate that they have suffered a “serious injury“.

So what is a “serious injury”?

The WorkCover legislation defines a serious injury. In order to show that you have a serious injury you must meet either of two complicated tests.

The Quantitative Test

Under this test, your percentage score of impairment under the American Medical Association Guides to impairment and/or the psychological guides must be 30% or more. It is possible to aggregate or combine an impairment rating from a physical injury with an impairment rating for a psychological condition even though the psychological impairment on its own is less than 30%. For example if there is a physical impairment of 20% and a primary psychological impairment all 15%, then the combined value of those impairments will be 32%. (Impairment scores are not added but combined using a special formula). These guides are very complex.

The Qualitative Test

This test is an alternative test to the quantitative test. It does not rely on a percentage score but rather relies on an assessment of the effect of the injury on your quality of life. This test is referred to as the narrative test as the WorkCover legislation narrates a series of criteria that must be taken into account. The criteria are any one of the following:

  • Serious permanent loss of a body function
  • Severe permanent behavioral or mental disturbance
  • Permanent serious disfigurement
  • Loss of a fetus

As this is a qualitative test, it requires a careful assessment of the full occupational, social, domestic, financial and psychological effects of your injury. In considering this test courts will look at many factors in determining whether an injury may be considered to be serious or not. Each case must be assessed on its own information about the full effects of an injury on the person.

This qualitative test is a very complex test. There is considerable case law about the way in which this test must be applied. The test will only canvass the permanent effects of injury and not the temporary effects of an injury. It is also clear that the physical and psychological effects cannot be combined to establish a serious injury. This means that either the physical effects or the psychological effects in their own right must constitute a serious injury. The psychological effects of an injury must be considered as ‘ severe ‘.

When can I claim economic loss damages in a common law claim?

The WorkCover legislation only allows a claim for economic loss damages (income loss due to injury) in strictly defined circumstances. It is only possible to claim these damages where:

  • You are certified as having a serious injury under the ‘quantitative test’ (i.e. an impairment rating of 30% or more), OR
  • You can show that your earning capacity has been permanently reduced by at least 40 %. This involves a very complex assessment of a claimant’s earnings and earning capacity 3 years before injury and a claimant’s earning capacity (not just actual earnings) 3 years after injury.

If your claim is within either of the circumstances set out above, you will be able to claim damages for both pain and suffering and economic loss. If you are not within the circumstances, your claim may be restricted to a claim for pain and suffering damages only.

In order to obtain the best possible result of claim for damages, it is important to carefully document the financial effects of your injury.

How are damages calculated?

Damages are calculated according to complicated rules, which vary according to the basis on which your injury is certified as a serious injury. There are two components of damages.

  • Economic loss damages
    These are claims for economic loss that generally include the nett current value of lost income and superannuation. These damages are capped by law at $1,076,580.00 but this high level will only apply to injured workers who are relatively young with high pre-injury earnings. Complex laws apply to the calculation of economic loss damages. (for more information about the calculation of economic loss see our WorSafe Vic FAQ page).
  • Pain and suffering damages
    These damages are to compensate an injured person for both past and future pain, suffering and distress caused by the injury. The maximum figure payable in an extreme case is $468,720.00. ( for more information about the calculation of pain and suffering see our WorkSafe Vic FAQ page)

Note | Disclaimer: This post has been compiled as a guide only, and to the best of my understanding of the relevant law, based on publicly available material. It should not be interpreted as legal advice in any way, form or shape and you must seek professional legal advice. If you don’t have a lawyer I highly recommend you check out the very experienced injury SHINE lawyers, which I personally recommend without any financial or other form of  ‘reward’ or ‘benefits’ attached. These lawyers are down to earth humans, empathic, and best of all are no sharks!

Suitable or modified duties and discrimination under workcover

Federal and State Anti-Discrimination legislation makes it unlawful to discriminate against someone on the basis of a disability/impairment. However the occupational health and safety legislation (OHS) requires employers to provide a safe workplace  for their employees.

These obligations can be a fine line when an employer suggests/allocates “suitable appropriate duties” for  injured employees (i.e. workers who have pre-existing injuries, or who are injured at work and are then certified fit to return on normal or light duties).

Restricting working hours, denying overtime or varying work duties (‘suitable duties) can all potentially constitute discriminatory conduct.

 

remember this is also discrimination

 

For example, a court may find that restricting the number of hours an employee recovering from surgery is allowed to work is discriminatory conduct. However, this conduct can be authorised if the employer can show that because the employee could not safely for example manoeuvre heavy machinery, the restriction was necessary to comply with the OHS requirement of ensuring a safe workplace.

Real workcover examples

H J Heinz v Turner5 (2002)

The court held that a workplace policy banning employees on restricted duties from overtime was discriminatory, but was authorised by law as it was a regime of work practice designed to ensure the health and safety of employees in compliance with OHS legislation.

NSWADT in Higginson v Cargill6

In that case, an abattoir worker had major surgery to his knee and was warned that if he slipped or fell he could lose the use of his knee completely. Because of the greater risk for this employee, the employer did not allow him to return to pre-injury duties on the slippery abattoir floor. However, the Tribunal held that the employee was not at a higher risk of slipping than a non-injured employee and that his injury did not prevent him from performing his pre-injury duties safely. Consequently, it was held that the employer discriminated against the employee.

The employer argued that the conduct was necessary to comply with its obligation to ensure workplace safety, but the Tribunal adopted a restricted approach to the statutory exemption. Under this approach, the employer must establish that there is a specific requirement in the other relevant Act relied upon. It must also be shown that the nature of the work and disability, when viewed objectively, leaves no option or discretion but to engage in the discriminatory conduct in order to comply with the requirement. In this case, the Tribunal held that the conduct was not necessary.

French v Sydney Turf Club7 – no discrimination

The Tribunal found that the employer discriminated against an employee by restricting her shifts to four hours. However, as her work injuries precluded her from safely lifting, bending, twisting or lifting loads from below the level of her thigh, the Tribunal found that, viewed objectively, the employee could not safely work a full shift as a bar attendant either with or without reasonable accommodation. Consequently the employer’s decision to limit Ms French’s working hours was necessary to comply with OHS obligations and was lawful.

Perlidis v Brambles Security Service8 – discrimination

Mr Perlidis worked as a member of an armoured vehicle car-crew. He strained his back at work and subsequently returned to work with medical certificates stating that he could lift only restricted loads. The employer decided that based on these limitations, Mr Perlidis could not be a member of any overtime car-crew. The employer argued before the Tribunal that the discrimination was lawful, as, when working overtime, it is important for safety that all members are able to lift full loads. The Tribunal disagreed and found that this was discriminatory conduct. It was held that there were other overtime duties that Mr Perlidis could have performed and therefore it was not necessary to restrict his hours.

An employer’s honest belief as to the employee’s best interests or to the effect of other Acts will not be a defence.

Discriminatory conduct will only be authorised if the employer can show that, viewed objectively, they had no option but to engage in the relevant conduct

 

 

Workcover and the high price of psychological injuries

Further to our hot discussion topic about being bullied and sacked, here is some more useful information about psychological injuries, workcover and the law.

Key Points about psychological injuries and workers compensation and the law

  • Workers compensation claims for psychological injury are increasing.
  • One recent case= $500,000 damages.
  • Employers required by law to provide safe workplaces, free from prolonged work-related stress.
  • Failure to have safe system of work is enough for employer to be prosecuted.

Workers compensation claims for workplace-related psychological injury have jumped in recent years and there is no sign they are on the decline.

Moreover, the cost of these claims is high when compared with other types of injury, with one employee in a recent case awarded almost $500,000 in damages from his employer.

Psychological injuries cost four times as much and take longer to resolve than other workers compensation claims.

What is psychological injury?

Depression, anxiety and neuroses are among the most common psychological workplace injuries. They may result from prolonged or excessive exposure to demanding, stressful stimuli, such as work-related factors and/or critical incidents. And most psychological injuries develop over a long period of time.

When initially faced with stressful stimuli, the body releases hormones that increase the heart rate, blood pressure, breathing and muscle tension. These create a state of mental and physical arousal in anticipation of a response to the stimuli.

If stimuli are prolonged and excessive, the body attempts to adapt. If the adaptation is over an extended period it can create exhaustion and provide little opportunity for the body to recover from its stressed state. Over a prolonged period, stress can make an individual susceptible to psychological injury. Physical ailments can also occur, such as headaches, back and neck strain, nausea and constipation.

Not all employees respond to stressful stimuli in the same way. Responses vary depending on an individual’s expectations and their capacity to deal with demanding work-related factors. As a result, managers must avoid relying on their own personal coping mechanisms as a guide to how much stress employees can handle.

At the same time, not all stressful stimuli are negative. A certain level of stimulus may motivate an employee to creatively and successfully complete tasks.

However, while individual employee expectations and capacity to cope may determine the extent of a response, it is work-related factors that trigger the response. A combination of high job demand and low job control is one of the most common work-related factors put forward to explain the work-stress response. In particular, low job control is seen as a major source of stress.

Employer liability

Under Australian occupational health and safety (OHS) statutory law and common law, employers must provide safe workplaces. This includes taking practical steps to identify, assess and control reasonably foreseeable psychological risks.

Under OHS statutory law, a psychological injury does not have to occur for an employer to be in breach of OHS law. Failure to have a safe system of work is enough to be charged and prosecuted.

Under common law, an employee with a psychological injury may be able to sue an employer for negligence and be awarded damages.

The State of NSW v Coffey [2002] NSWCA 361, 7 November 2002 (Meagher, Heydon and Ipp JJA), is an example of how an employer’s common law duty may play out in Court. The Court of Appeal found employers have a responsibility to ensure the psychological health and safety of their workers.

A NSW Housing Commission caretaker received threats and abuse from tenants and had witnessed murders and suicides, which he reported to his employer. He also asked his employer to erect a security screen at his office counter, but the employer refused.

The caretaker resigned from his job after eight years of service with depression and post-traumatic stress disorder. The Court of Appeal held the risk of psychological injury was reasonably foreseeable, but the employer had failed to act. The employer could have considered rotating the employee into other positions, monitoring the employee’s coping ability and ensuring he received ongoing counselling.

Although the employer offered a counselling service, it was up to the employee to seek it out. According to the court, this was not sufficient to „absolve” the employer from its duty of care to provide a safe system of work. The employee was awarded $459,478 in damages.

Workers compensation laws

Under Australian workers compensation laws, psychological injury can be compensated if work contributes to the injury or aggravates an existing injury. The workplace does not have to be the dominant or the only cause, but it must be a substantial cause of the injury.

Depending on the injury, compensation may include benefits such as weekly payments, medical treatment, rehabilitation and lump sum payments for permanent impairment (as opposed to common law damages).

Employees who are awarded common law damages will have their access to workers compensation benefits ceased or restricted.

Injuries resulting from reasonable managerial direction, such as retrenchment or addressing an employee’s wilful misconduct are not covered by workers compensation. However, if retrenchment and other managerial directions are handled in an unreasonable manner then there could be grounds for a stress claim.

In Jaksic v WorkCover/Allianz Australia Workers Compensation (SA) Ltd (Konica Australia Pty Ltd) [2004] SAWCT 17A, the SA Workers Compensation Tribunal found the workplace contributed to an employee’s anxiety and set WorkCover SA’s denial of the employee’s claim.

WorkCover had argued it was a disciplinary interview that caused the employee’s anxiety; therefore the stress claim could be denied. However, the judge found other action, not just the disciplinary action, contributed to the employee’s injury.

The employee’s supervisor arrived at work one morning to find the warehouse gate had been left open by the employee and decided to teach the employee a lesson in securing the warehouse. The supervisor hid equipment from the employee then asked the employee to find it. The employee could not. The supervisor then revealed the equipment, indicating the workplace was not secure. The employee became anxious and left work. The employee had a history of not adhering to workplace policies and was in the process of being counselled over this. The employee also had a history of anxiety. The judge subsequently found that hiding the equipment had been unreasonable and the employer should have foreseen it would cause the employee to become anxious.

Disability discrimination laws

Employers must also understand their obligations under disability discrimination laws. An employer cannot use a psychological injury as the reason for dismissing an employee if the employee still can carry out the basic job requirements.

In Power v Aboriginal Hostels Limited [2003] FCA 1475 the Federal Court set aside an earlier Federal Magistrate’s Court ruling, which found an employer’s decision to terminate an employee suffering from clinical depression was reasonable. According to the Federal Court, the Federal Magistrate failed to consider if the employee was unable to perform his on-call duties.

Privacy laws

Employers should also have regard for privacy laws. Federal laws impose certain obligations on the collection, use and storage of certain information. Health information is considered sensitive under federal privacy laws. Employers must ask permission before collecting such information and do not have an unfettered right to use such information.

Preventing psychological injury

To ensure all workers are reasonably protected from psychological risks, employers should address stressful work-related stimuli, not just employees’ stress responses.

Specific stressful stimuli may include, but not be limited to:

  • controlling management style;
  • poor consultation;
  • blaming culture;
  • unclear job description;
  • inadequate training;
  • poor recruitment techniques;
  • unexplained constant change;
  • intense, fast-paced work;
  • repetitive and boring work;
  • unsupportive work environment;
  • interpersonal conflict;
  • critical incidents;
  • poor ergonomics;
  • lack of flexibility, poor salaries and poor working conditions.

Employers should also be aware of the substantial indirect costs of psychological injury. They can have a negative impact on a workforce’s productivity, morale, turnover, motivation, absenteeism and relationships.

Managers should take the lead and demonstrate the importance of preventing workplace psychological injuries at both the organisational and the individual level.

Requesting copies of your documents under the freedom of information act

You can request (and are entitled to) a copy of  your file and doctors reports  and even your surveillance videos- simply write a  Freedom Of Information letter , make a copy and sent it to the insurer.

Freedom Of Information Letter sample

Example letter 1 to request copies of workcover documents:

To Whom It May Concern (Insurer/ Claims Manager / etc)
Under the Freedom Of Information, Section 107 of the Accident Compensation Act. I hereby request my file unabridged and complete. I request all notes on computer file, notebook or note pad. I request  all photography and surveillance notes – still video –all audio recordings, connected to my file, not just audio file of myself, but all audio file where my claim is the main topic of discussion. Please send this as soon as possible to ( Legal Firms name and address,
or G.P. name and address )
Claim name and number.

Example  letter 2:

To Whom It May Concern ( Insurer / Claims Manager / etc )
Under the Freedom Of Information,  Section 107  of the Accident Compensation Act, I hereby request that you please send the report by (Dr  …………..)    which I attended for a review on
the ( date) Please send this assessment as soon as possible to my treating doctor (Dr …………). or legal firms name and address.
Claim name and number.

read more about the FoI Act

 

Enjoy 😉

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Medical and Like Services: Know your entitlements

Did you know that you are entitled to heaps of Medical and Like services under the workcover Act?

  • Acupuncture:

WorkSafe can pay the reasonable cost of acupuncture services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

  • Aids and appliances

Workers are entitled to be compensated for the reasonable costs of personal and household services incurred because of the work place injury.

The definition of a personal or household service includes aids, appliances and apparatus.

To be eligible for reimbursement, these services are to be requested by a registered medical practitioner.

  • Attendant Care

The accident compensation legislation states that workers are eligible for reimbursement for ‘personal and household services’ and the definition of a personal or household service includes attendant care. The legislation also specifies that these services are required to be provided by a person who is approved by WorkSafe.

Attendant care is most often required:

to assist a severely injured worker who is dependent on assistance for aspects of movement, self-care, toileting and activity; to facilitate community access, assistance in social activities and vocational return to work; as part of a hospital discharge plan, which forms the basis of a structured holistic program.

Attendant care is provided to workers to assist with activities of daily living, including: personal care – showering, bathing, dressing, toileting, grooming, eating, drinking, preparation of specially prescribed foods, monitoring of medication, assistance with use of specialised equipment; program implementation – implementation of goal oriented programs, conduct of physical exercise, programs designed to increase skills of daily living; community access and recreation – providing 1:1 support for the attendance at and participation in events and activities;  respite – providing care for a worker to allow the family respite.

You can also request for friends or family members being paid to provide attendant care!!!

Will require medical evidence and support from the treating medical practitioner.

  • Burial/Cremation

WorkSafe can pay the reasonable costs for a burial or cremation incurred within Australia when a worker dies as a result of a work-related injury and there is an accepted WorkSafe claim for the death of the worker.

  • Car modification

WorkSafe can pay the reasonable costs of modifications to a car that are reasonably required as a result of a worker’s injury or illness to enable the worker to drive or to be transported safely (examples:non-functional arm: include a  spinner knob, t indicator extension, modified accessory controls; adjusted mirrors, seat belts, harnesses etc)

Where a worker’s car cannot be modified or the worker does not have access to a car, WorkSafe may contribute a reasonable amount to the purchase cost of a suitable car selected by WorkSafe.

  • Childcare services

WorkSafe can pay the reasonable cost of childcare services at the request of a medical practitioner if those services are required as a direct result of a work-related injury or illness and supported by an independent OT assessment as being necessary and appropriate.

For example, if  you are unable to provide childcare as a result of your injury or illness you can get child care services!

  • Chiropractic

WorkSafe considers chiropractic to be a primary contact service. A referral from a medical practitioner is therefore not required.

  • Community access

WorkSafe recognises that some eligible workers may acquire multiple physical, sensory and cognitive disabilities, which may impact on their ability to access and participate in their social and recreational activities.

Community access services are designed to assist eligible workers to increase their participation in the community by identifying and responding to their individual needs through Community Access Planning and Community Group Programs. These services may be provided to an eligible worker separately or in combination depending on the needs of the worker.

Community access planning is the services provided by a community access planner to an eligible injured worker which aims to: maintain and enhance peer support networks, and facilitate sharing of authorised support services; assess and review the support needed to enable a worker to participate in community bases social or recreational activities; link workers into community bases social or recreational activities; monitor a workers participation in community activities to ensure programs continue to appropriately address the workers needs.

Community group program is an individually tailored program of supported group activities which: is provided within community based facilities; is specifically designed for eligible workers who require support; to engage in social or recreational activities outside the home; supports the development of peer support networks, community living and social skills.

A referral is required from a medical practitioner for the provision of any approved health service with the exception of medical, physiotherapy, osteopathic, chiropractic, optometry, dental and podiatry services.

  • Dental services

WorkSafe can pay the reasonable costs of dental services (including oral and maxillofacial surgery) as a result of a work related injury or illness.

Note: Prior approval is not required for emergency dental treatment requests relating to a work-related injury or illness.

  • Dietetic services

WorkSafe can pay the reasonable cost of dietetic services at the request of a medical practitioner if those services are required as a direct result of a work-related injury or illness.

Note: WorkSafe will not pay for weight loss programs or food/meal replacement services, for example home delivered meal services such as Lite n’ easy or weight loss programs such as Weight Watchers or Jenny Craig.

  • Elective surgery

Elective surgery is clinically necessary, non-emergency surgical treatment (including surgical procedures) performed by a suitably qualified medical practitioner.

Prior written approval from the agent is required for elective surgery. You can have your surgery in a private hospital.

Note: Worksafe will not pay for services provided outside of Australia without prior approval from the agent

  • Equipment and related services

WorkSafe can pay the reasonable costs of equipment and related services to assist a worker in the rehabilitation of a work-related injury or illness, or whose work-related injury or illness has caused impaired function in any of the worker’s activities of daily living.

To consider paying for aids and appliances, WorkSafe requires the following information:

·         A current referral from a medical practitioner for any equipment and related services.  To assess a worker’s eligibility for equipment, WorkSafe also requires a written recommendation from the worker’s treating therapist or relevant healthcare provider

·         For wheelchairs, pressure cushions, beds, mattresses, powered conversion kits, scooters, standing frames, lounge chairs, customised toilet/commode/shower chairs or hoists, an Equipment Prescription Form must be completed by the prescribing therapist and submitted to the Agent.

WorkSafe can pay the reasonable costs of equipment and related services that are reasonable and/or necessary for the worker’s work-related injury or illness.

WorkSafe will take into account whether the equipment and related services will:

·         increase independence

·         facilitate a return to vocational, educational or leisure activities

·         improve mobility

·         relieve pain/discomfort

·         ensure a safe environment

·         aid communication/swallowing management.

Examples: taping – zinc oxide, fixomull, strapping, etc; bandages – compression, tubigrip, thera-band, gauze products; oedema control and dressing bandage;  thermal supports, pressure garments and gloves; soft collars; hand putty/thera-putty digiflex, exercise foam; walking sticks, triangular slings; plaster, ice packs, heat packs; hibitane, iso-wipes, skin-prep, applicators; adaptive cutlery; dressings aids (example, long handled sponge/shoe horn, toe wiper, sock aids, button hooks, elastic shoe laces); pick up sticks.

  • Exercise physiology

In order for WorkSafe to consider payment of the reasonable costs of exercise physiology the medical practitioner referral must be provided to the agent by the worker or healthcare provider.

  • External case management

External case management is a collaborative process with may include an assessment, planning, facilitation and advocacy for options and services to meet an individual’s health needs through communication and the utilisation of available resources to promote quality cost effective outcomes.

WorkSafe recognises that some eligible workers at certain times require assistance beyond the case management role of an agent or the role of treating health care providers. Case management services are a time-limited service that complements the agent’s role.

A referral is required from a medical practitioner for the provision of any approved health service with the exception of medical, physiotherapy, osteopathic, chiropractic, optometry, dental and podiatry services.

  • Gym and swimming programs

WorkSafe can pay the reasonable costs of a gym and/or swimming program at the request of a medical practitioner if those services are required as a result of a work-related injury or illness and to transition to a self-managed exercise program.

Written approval from the agent is required for a gym or swim program.

Example: You have injured your knee – you are allowed to attend gym to strengthen your upper body (arms etc)!!!

  • Hearing services and devices

WorkSafe can pay the reasonable costs of approved hearing services and devices provided by WorkSafe approved hearing service providers to assist workers in the rehabilitation of work-related injuries or illness under s99 of the Accident Compensation Act 1985.

  • Home modification

WorkSafe can pay the reasonable costs of modifications to a home in which a worker resides in Australia, where the modifications are reasonably required as a result of a work-related injury or illness and will impact on a worker’s access to and function within the home.

If a worker’s home cannot be reasonably modified for any reason, WorkSafe may contribute a reasonable amount to the purchase cost of a semi-detached portable unit or to the costs of relocating the worker to another home that is suitable for the worker or is capable of being reasonably modified.

Major Home modifications include: Any modification/contribution made by the agent for an amount greater than $10,000 where structural changes are necessary (eg moving internal walls or enlarging existing rooms) and/or extensive modifications in and around the house eg ramps, carports, bathroom and/or bedroom.

Minor Home modifications cost less than $10000 and include things like holding bars for the bath, different locks on doors; holding bar for toilet; rails etc.

Requests for home modifications can be initiated by any party, worker, family, medical and health practitioners, hospital but the actual home modification recommendations must be submitted by an Occupational Therapist (OT).

  • Household help

Household help refers to the provision of services for basic and routine common housework and gardening tasks that the worker performed pre-injury and are essential for maintaining the worker in the home.This also applies to injured workers who are living with a partner/spouse.

A referral is required from the worker’s treating medical practitioner. The treating medical practitioner must provide supporting evidence.

Note: WorkSafe will not pay for: the cost of cleaning materials;  food items; standard housework or household appliances; self care tasks including bathing, dressing or personal grooming; pet care; support of hobbies or personal lifestyle interests. For example: hobby farm, animal breeding or showing;  car care; home or furniture maintenance including window washing, cleaning or drapes blinds or carpets; home modifications including painting, renovation or modification; property maintenance or repair including painting, watering gardens, gutter cleaning or maintaining paving;  the cost of garden implements unless recommended by an OT as modification or assistive equipment for the  worker;  raw materials. For example: plants or mulch; fees for rubbish or grass removal.

  • Implantable pain therapy

Implantable Pain Therapy (IPT) is a procedure involving the use of an implantable device to address persistent pain and may be considered when a range of alternatives for managing persistent pain have been fully explored.

Implantable pain therapy incorporates:

·         intrathecal morphine infusion and other analgesic infusions (also known as intraspinal pumps)

·         neurostimulation techniques such as:

·         spinal cord stimulation

·         subcutaneous electrical stimulation

·         peripheral nerve stimulation

·         deep brain stimulation

·         motor cortex stimulation

·         other implanted neurostimulation devices for pain.

  • Medical practitioner services

The Act includes in the definition of a ‘medical service’, attendance, examination or treatment of any kind by a registered medical practitioner.

Note: WorkSafe does not consider it a reasonable cost to pay for the following:

·         letters of advice

·         the issue of repeat prescriptions when the patient is not in attendance

·         post mortem examinations

·         issuing of death certificate.

WorkSafe will not pay medical practitioners for telephone consultations, either to the worker or other related parties such as the agent, employer or occupational rehabilitation provider.Which I think is disgusting!

  • Independent medical examinations

Read more about workcover IME in our previous posts (just enter the word IME in the search box)

  • MRI

WorkSafe will pay the reasonable cost of an MRI service in accordance with the WorkSafe fee schedule for a worker where the service is:

·         required as a result of a work related illness or injury

·         referred by a registered consultant physician or specialist

Read more about MRI’s under workers compensation here

  • Loss and grief counselling

WorkSafe can pay the reasonable cost of loss and grief counseling services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

Note: WorkSafe will only pay for the reasonable costs of family counselling services that are incurred in Australia, provided by a medical practitioner, registered psychologist or social worker approved by WorkSafe and provided to families of workers who have:  died as a result of an injury or suffered a severe injury.

  • Naturopathy

WorkSafe can pay the reasonable cost of naturopathy services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

  • Nursing

WorkSafe can pay the reasonable cost of nursing services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

Nursing services are services rendered by a registered nurse, other than at a hospital or as a member of the nursing staff of a hospital.

  • Occupational rehabilitation including training courses & ergonomic equipment

Occupational rehabilitation (OR) services are offered to a worker with a current work capacity (CWC) or a potential CWC to assist them to RTW.

Workers are entitled to receive an OR service from an approved OR provider of their choice from a list of at least 3 OR providers.

There are different types of Occupational rehabilitation services: RTW with same employer; RTW with new employer. See the online’s claims manual for more information (under “return to work”section).

  • Occupational physiotherapy

Occupational physiotherapists are physiotherapists with specific skills and experience in treating clients/workers and can help facilitate early rehabilitation and safe and sustainable return to work. Occupational physiotherapists collaborate with the client/worker, their employer, medical practitioner and other health providers. This includes conducting worksite visits, developing and implementing return to work programs and writing certificates of capacity.

  • Optometry

WorkSafe considers optometry to be a primary contact service.

A referral from a medical practitioner is therefore not required for the provision of optometry services.

A referral is required from a medical practitioner for provision of any approved health service with the exception of medical, physiotherapy, osteopathic, chiropractic, optometry, dental and podiatry services.

  • Osteopathy

WorkSafe considers osteopathy to be a primary contact service. Therefore a referral from a medical practitioner is not required.

  • Pain management programs

WorkSafe can pay the reasonable costs of Pain Management and Network PM Programs to assist workers in their rehabilitation of a work-related injury or illness.

Pain Management and Network PM Programs are multidisciplinary interventions which are designed to assist workers with musculoskeletal injuries and persistent pain to manage their condition and reduce the disability associated with their pain.

Pain Management and Network Pain Management Programs also aim to assist workers who are having difficulties: managing their injuries and participating in functional activities at home, work or in the community due to their pain or reducing their dependency on medications and allied health treatment due to their persistent pain.

A written referral from a medical practitioner can be sent directly to a Pain Management or Network PM Programs provider.  The agent will then consider the request for a PM or Network PM Programs assessment

  • Pharmacy

WorkSafe will not pay for medications and pharmacy items that:

·         do not relate to a work related injury or illness

·         are not provided on the request of a registered medical practitioner or registered dentist

·         are not provided by a registered pharmacist

·         are not provided at a reasonable cost

·         are prescribed as part of a clinical trial

·         were required prior to the worker-related injury or illness

·         are not invoiced according to WorkSafe minimum invoicing requirements

·         are not registered on the ARTG (except glucosamine).

Read more about medication entitlements under workcover in our previous post

  • Physiotherapy

WorkSafe considers physiotherapy to be a primary contact service. A referral from a medical practitioner is therefore not required for the physiotherapy services.

WorkSafe will also consider the reasonable cost of Gym and swimming program.

  • Podiatry

WorkSafe considers podiatry to be a primary contact service.

A referral from a medical practitioner is therefore not required for the provision of podiatry services.

  • Private hospitals

WorkSafe can pay the reasonable costs of private hospital services required as a result of a work related injury or illness.

Written approval is required from the agent prior to the provision of the service.

Note: Prior approval is not required for requests relating to emergency psychiatric inpatient treatment. If a hospital seeks prior approval, this must not be delayed.

A private hospital is a private hospital:

·         within the meaning of the Health Services Act 1988 or section 178 of the Health Act 1958

·         within the meaning of a law of another State or of a Territory

or

·         outside Australia if approved by WorkSafe.

A private hospital service means the provision by a private hospital of:

·         maintenance, attendance and treatment

·         nursing care and treatment

·         medicines, medical, surgical and other curative materials, appliances or apparatus

·         any other usual or necessary services provided by a hospital with respect to the treatment of the injury or illness of a worker.

  • Psychology

WorkSafe considers psychology to be a referral service. A referral from a medical practitioner must therefore be provided prior to commencement of psychology services.

  • Remedial massage

WorkSafe can pay the reasonable cost of remedial massage services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

Remedial massage is defined as the application of manual massage techniques to treat musculoskeletal disorders or dysfunctions in a systematic way. Remedial massage is designed to improve the function of the injured worker in the rehabilitation process and achieve progress in return to work outcomes.

  • Removalist costs

WorkSafe can pay the reasonable cost of removalist services at the request of a medical practitioner if the worker is required to move as a direct result of a work-related injury or illness.

In order for WorkSafe to consider payment of the reasonable costs of removalist services the agent must be provided with the following information:

·  a current referral from a medical practitioner

·  at least two from quotes from removalist companies.

  • Respite care

Respite care services are services provided to assist workers with a work-related injury or illness who are being cared for at their place of residence (eg by family or household members) by giving workers and carers a short term break from their regular support routine. Respite care can be provided within a worker’s place of residence (e.g. by an attendant carer) or externally (e.g. accommodation facility such as an aged care facility, supported residential services, shared community housing, or a day program).

Respite care services are intended to assist the continuation of the primary informal support relationship between a carer and an injured worker whilst giving both the opportunity to rest and have a break.

To be eligible for consideration of respite care services, a worker as a result of their injury or illness must:

·  have substantial physical, psychological, cognitive or sensory disability which was sustained as a result of a work related injury or illness

·  require a significant level of ongoing daily/personal support (For example: hygiene, mobility, supervision etc)

·  have a family or household member who provides to the worker a significant level of ongoing daily/personal support

·  have been assessed by an occupational therapist and/or multi-disciplinary team, as requiring respite care.

A referral is required from a medical practitioner.

  • Social work

WorkSafe can pay the reasonable cost of social work services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

WorkSafe considers social work to be referred service. A worker can access a referred service with a medical practitioner referral.

  • Speech pathology

WorkSafe can pay the reasonable cost of speech pathology services at the request of a medical practitioner if those services are required as a result of a work-related injury or illness.

WorkSafe considers speech pathology to be a referred service. A worker can access a referred service with a medical practitioner referral.

  • Travel expenses

WorkSafe can reimburse reasonable travel expenses incurred by a worker to attend medical and hospital services (this also includes physio, psychologist etc) required as a result of a work-related injury or illness in accordance with s99 of the Act. Travel and associated expenses incurred to attend an independent medical examination, impairment assessment or Medical Panel assessment can also be reimbursed as well as Conciliation (ACCS).

Requests for reimbursement must be submitted within six months of the date of travel.

Taxi travel is also possible, I will discuss this in a later post.

Independent Medical Examinations (IME) under WorkCover

About Independent Medical Examinations (IME)

Independent medical examinations are arranged primarily to determine whether a worker is entitled to compensation, or if the worker has a continuing entitlement to compensation. So, it’s not about you or your health, but about cutting off any benefits such as your weekly payments, ceasing your physiotherapy, psychology entitlements, or simply to find a loophole in the most corrupt system to get some IME to certify you fit -even if your own medical treaters, even super specialist deem you unfit for all work.

read more about IME’s in the Claims Manual

 

When can WorkCover send you to an Independent Medical Examination?

When should the Agent send you to an IME

“When assessing whether a (s112) IME examination is necessary, the agent should consider that the examination will:

  • strategically contribute to the management of the worker’s claim, and/or enhance RTW opportunities by addressing specific identified medical and/or treatment issues, and/or identify future medical/treatment management needs
  • provide required specialist advice not previously held or available via alternative sources, including the worker’s treating practitioner or specialist “

(Extract from the online Claim’s manual)

Note the word ‘strategically‘ … this simply means that the workcover agent  (your case manager) is (getting) desperate with all the overwhelming evidence (in your favour) and is in panic mode to send you to an (often inapproriate) IME to find a way to cut off your benefits and/ or to have you certified fit.

Interestingly the Claims Manual also states that your case manager should consider an IME when the IME will provide “required specialist advice not previously held or available via alternative sources, including the worker’s treating practitioner or specialist”.

In  2009, the revised Guidelines state that referral for an independent medical examination is only appropriate when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent and where the referrer has been unable to resolve the issues related to the problem directly with the practitioner(s).
If an injured worker submits a report from an assessor of permanent impairment regardless of whether they are the worker’s treating medical practitioner and questions regarding that assessment arise, they are to be posed to the assessor in the first instance. If the response from the assessor is inadequate, unavailable, inconsistent or not received within 10 working days, a referral to an independent medical examiner may proceed.

The Act also states that the IME needs to be specialised in the field of the worker’s injury (i.e. for a hand injury a hand surgeon).

Why are they sending me to an IME?

I find it extremely disturbing that (my) case manager only sends me to an IME,when she (as an uneducated, non-medically trained clerk really) is cornered by overwhelming evidence from my own treaters, and needs a way out!

Can you explain why case managers usually send you to IME’s that:

  • have nothing to do/are not specialised in the field/area of your injury
  • have far less experience in the type of your injury than your own (super)specialist

In my case for example, I have a purely and very specialized orthopedic injury which a general orthpedic surgeon is unable to treat (they referred me to a super specialist centre). So, why do you think that my case manager NEVER sends me to a super-specialist in the field, not even a general orthopedic surgeon, BUT to a general surgeon? General surgeons deal with guts! (i.e. bowel, gall bladder, appendix and things like warts).

What do they hope to gain by sending me to a general surgeon who has no clue about my injury?

On more than one occasion a very old (more than 75 years) ‘general surgeon’ told me that ‘he had never heard about the particular grafting methods used in my injury’ and ‘could not understand the relationship between my limb number 1 and my limb number 2- whilst I had tendons removed from limb number 1 to transplant in limb number 2. This is frightening and yet these people have to write a report about you and decide whether or not you are fit for work, you can or can’t do certain work, if the treatment you are receiving is appropriate and if they can cut off some benefits and entitlements.

On another occasion I received an email from my nasty case manager to say that she ‘…was not interested in my physical condition…’ after I had told her that my injury had taken a turn for the worst and after my super specialist had requested approval for major surgery.

She knew for a fact that I was unfit for all work from a physical perspective yet decided to send me to a psychiatrist ‘to assess my return to work and engagement in rehabilitation” DUH???? Assume I was certified fit for work from a psychiatric side, what f*** difference would it make, given that I am unfit for all work from a physical side?

More recently I was told by my case manager that I was to attend an physical IME. When I asked her why she simply stated that it had been 1 year since my last physical IME (with the bowel doctor). This is obviously not a sufficient reason.

I asked my super specialist (surgeon) to personally speak to my case manager to discuss with her any questions she may have and to ensure that she knew that I am currently unfit for all work, and that I need home help and taxi transport. He explained to her in what way the injury had further deteriorated and that my condition was very serious.

Right…

Next thing (2 days later) I hear (apart my super specialist telling me that he spoke with my case manager whom he said was a ‘nutter’ and ‘quite something’) from my case manager that I need to attend an urgent physical IME with a general orthopedic surgeon. She is still unable to give me a (valid) reason as why I need to attend and what it is she hopes to gain out of an assessment by a doctor who is not specialised in the type of injury I have.

I can only assume (again) that my case manager is not happy about my deteriorating condition and inability to work and hopes that a non-specialist might have the corrupt or bribed conscious to state that I am fit for work/some type of work, so that she can cut off some or all of my benefits.

Ironically there has been no need to send me to an IME  for a period of 5 years, in-spite of having deteriorated so badly that I have had to undergo 6 major operations to this injury. No-one questioned this, nor if I was safe and in a ‘suitable work environment’… I mean how do you explain 6 operations in 4 years? Well the reason it was not deemed necessary to send me to an IME was of course that I continued to work in between those surgeries…

I would love to hear your thoughts about the so called IME’s!

resraining-your-work-cover-case-manager

Can I put a “restraining order” on my work cover case manager?

Is your work cover Case Manager driving you nuts? Is he/she calling you multiple times a day? Do you feel harassed? Are you becoming scared of picking up the phone? Do you feel that she/he is aggravating your emotional/psychological state and/or recovery? Sounds familiar? Well, here is some good news for you:

Yes, you can stop your case manager from contacting you directly!

 

I personally was inappropriately harassed by a Case Manager for a number of weeks. I was receiving up to 10 phone calls per day and the nature of those calls were really making me sick.

One one occasion, shortly after having been (illegally) sacked by my employer based on “impairment”, I was extremely upset and depressed, to the point where I felt that I would be better of dead… Well, this Case Manager kept phoning me to tell me that “I should work” and that “she knew I could work” and that “she would be sending me to occupational rehabilitation/retraining” and “make sure I would return to work”.

Given that I had been sacked a few days before – and that my horrible employer terminated my long standing employment (we’re talking 6-7 years after the injury/accident) based on “impairment” (read: refusing to make some ergonomic changes to my work place before and after my latest surgery), I strongly felt that it was most outrageous that my case manager could behave like that. I mean he/she (work cover) was certainly also responsible for my sacking as they failed (for many years) to ensure that I would be accommodated in the work place with the medically requested and reasonable tools. Moreover, I had just been certified unfit for all work by my GP and treating psychiatrist.

So, I get sacked because my employer basically says that I can’t work (I am too disabled – mind you I was not too disabled up to 3 days before the last surgery and did the same job in a much worse physical state!), and I was doing office work for God’s sake! I plunged into a very severe depression and had been certified unfit for all work by my treating GP and Psychiatrist . So, here I was, devastated and receiving all these inappropriate calls from my case manager. I was starting to feel really sick when he/she called and at one point had a nervous breakdown on the phone.

Anyway, to cut a long story short, I consulted my lawyer and asked if it was possible to put some sort of restraining order on that case manager. Well, the answer is yes! I am not sure exactly on the legislation involved but it is about your civil rights.

Here is an extract of some correspondence with my lawyer at the time (and I am pleased to say that I have never received a phone call from my case manager since ;))

 

resraining-your-work-cover-case-manager

click to enlarge

So, don’t put up with any s**t from your ‘case manager’!

Do I have to attend an Independent Medical Examination with the doctor chosen by work cover?

A few months ago, I was asked by my case manager to attend yet again an independent medical examination (IME), with the same doctor I had seen 6 months before.

My experience with this “independent doctor” was so traumatic that I refused to be examined again by the same doctor. There was no way on earth I would ever go to this independent doctor ever again.

Being fearful of loosing my weekly earnings (read: being well aware that if you do not attend an IME your weekly payments may be suspended or ceased), I decided to consult my lawyer on this rather delicate matter.

Well, I am very pleased to let you know that we (my lawyer) were successful! I did not have to see that same, rotten (excuse my language) independent doctor but was given permission to attend the IME with another doctor (specialised in the same area). Oh boy, what a difference this made 😉

Keep this in mind if they send you to some previously seen horrible jerk of an ‘independent medical doctor)!

Got any tips and tricks? Please share them with your fellow workcover victims – and let’s try to make our lives a little bit better!