CONSTABLE CONNOR NO WIN/NO FEE WORKCOVER LAWYERS RIGHTS AND BENEFITS AVAILABLE TO INJURED WORKERS UNDER VICTORIAN WORKCOVER

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1 CONSTABLE CONNOR NO WIN/NO FEE WORKCOVER LAWYERS RIGHTS AND BENEFITS AVAILABLE TO INJURED WORKERS UNDER VICTORIAN WORKCOVER Information limited to Victorian workcover The Victorian workcover legislation has been amended over one hundred times since it was enacted in Some judges have commented that it is now as complicated as income tax law. Interstate workers are covered under different state systems. Apart from the 3 warnings that follow, interstate workers will not find any valuable information here. We are happy to recommend expert interstate work injury lawyers on request. Your claims manager is not your friend. You will be assigned a claims manager by the workcover insurer. These people may seem to be helpful and friendly. But their job is to minimise or defeat workcover claims so as to save money for the workcover system. When these people contact you, you should be watchful and cautious, and you should always check their advice on important matters with us. Your only friends in the workcover system are the medical professionals who are treating you and Constable Connor as your workcover lawyers. Insurance Investigators and Video Surveillance During the course of your claim you may be contacted by someone representing the insurer or their solicitors, seeking to conduct an interview or obtain a statement from you or requesting copies of medical records or other relevant documents. You should refuse these requests and we should be made aware of any such approaches immediately. You should respond to these requests by saying, "This matter is in the hands of my solicitors, Constable Connor", and then directing them to this office. You should also be aware that at an early stage of your claim, the insurer and its legal representatives may, at any time, instruct insurance investigators to follow you and obtain video surveillance film. In all likelihood you will not be aware that you are being observed and filmed. The purpose of video surveillance film and investigation reports is primarily to prove that workers are Page 1

2 faking or exaggerating their injuries. Should your matter proceed to a Court hearing, the insurance investigation reports and video surveillance films will be produced as evidence. Medical Examinations Sometimes during the assessment or progress of your workcover claim there is disagreement about the medical aspects of your injury or condition. In these circumstances you may be asked to attend appointments with doctors chosen by the Workcover insurer. These doctors are recognised by the courts as independent and highly-qualified specialists, but they have limited time to spend with you and have no interest in helping people who are exaggerating their injuries. If you have a workcover claim, you need to lead an accurate life. The way you move and behave with your injuries should be accurate and identical, whether you are at home, at the supermarket, in your own doctor s office, in an insurance doctor s office, wherever you are and whatever you are doing. Internet Sites You need to be careful when posting on social networking sites like facebook and twitter. Your comments, status updates and reporting of activities on these sites are not private! The insurers and their lawyers monitor these sites and are most interested in what you have to say about injuries, claims, activities etc. Letters and documents You may also from time to time receive letters or documents from the other side, their insurers or solicitors. Some of these look innocent enough, but it is difficult for non-lawyers to know. It is essential that you let us have copies of any letters or documents immediately you receive them. 1. INJURIES PRIOR TO 12 NOVEMBER 1997 On 12 November 1997 significant changes were made to the Victorian Workcover legislation which substantially altered your entitlements for injuries sustained both before and after the introduction of the changes. These changes affected weekly payments, lump sum compensation and common law rights. If you were injured prior to 12 November 1997, your rights and entitlements can be different from current rights and entitlements. We will explain these differences to you as your claims progress. Page 2

3 2. INJURIES ON OR AFTER 12 NOVEMBER 1997 A. Weekly payments For the first 13 weeks You are entitled to receive 95% of your pre-injury average weekly earnings (PIAWE) up to a maximum amount (indexed each year). In the first 26 weeks only, PIAWE can include compensation for lost overtime and shift work in certain circumstances. If you have a current earning capacity then you will receive 95% of your PIAWE less real or notional earnings. Notional earnings are fictitious earnings being the amount which the workcover insurer determines you would be capable of earning if suitable employment was available to you. Between 13 weeks and 130 weeks If you have no current work capacity you will be paid 80% of PIAWE up to a maximum amount (indexed each year). If you have a current work capacity then weekly payments will generally be the difference between 60% of your PIAWE and 60% of real or notional earnings. At Constable Connor, we have a proud and successful record assisting workers with disputes over PIAWE and payment rates. Entitlement to weekly payments after 130 weeks You are entitled to receive weekly payments beyond 130 weeks at the rate of 75% of PIAWE (up to a maximum amount indexed each financial year) if you are assessed as having: (i) no current work capacity ; and (ii) likely to continue indefinitely to have no current work capacity. The real question, after 130 weeks, is whether your injuries are minor enough to enable you to hold down a real job in the workforce, whether part-time or full-time, and taking into account factors such as your age, education, work experience and place of residence. Further, if at the end of 130 weeks, a worker has current work capacity, then a special application can be made to continue weekly payments where : (i) (ii) the worker has returned to work not less than 15 hours per week and earning at least a certain amount per week (indexed annually); and because of the injury the worker is likely to continue indefinitely to be incapable of additional work which would increase weekly earnings. Restrictions All weekly payments are dependent upon you: Page 3

4 (i) making reasonable efforts to participate in rehabilitation and accepting reasonable offers from the employer to return to work in suitable employment; and (ii) attending the workcover insurer s doctors and/or rehabilitation providers for assessment from time to time. Rehabilitation issues and return to work offers constitute a major cause for final loss of weekly payments and these issues are a real danger and a legal minefield. You need to work closely with your doctors and lawyers to successfully find your way through that minefield. B. Reasonable medical and like expenses You are entitled to payment or reimbursement of all reasonable medical and like expenses incurred in the treatment and rehabilitation of your work-related injuries. This includes all doctor's expenses, hospital, ambulance, nursing and rehabilitation costs. You are also entitled to claim any travel expenses incurred in travelling for treatment or medical examinations. Payments may also be available for other treatment services such as physiotherapy, chiropractic services, household help and domestic services in suitable cases. It may also be possible for your pharmacy/treating doctors to bill the workcover insurer direct. Payment of retraining/rehabilitation expenses is available but subject to prior approval by the relevant workcover insurer. You should retain all invoices and receipts for these expenses and provide them to the workcover insurer so you can obtain reimbursement of those expenses. You should always keep a duplicate copy of any invoices/receipts you send to the insurer. If the insurer refuses to pay an expense which was properly incurred you are able to have the decision reviewed by way of conciliation application and ultimately by way of a court application for enforcement. C Section 98C/98E Claims No fault compensation for permanent impairment If as a result of your injury (irrespective of whose fault it was) you have sustained a permanent impairment to the whole body of 10% or more then you are entitled to lump sum compensation. Before such a claim can be made the injury must have stabilised. Some injuries (including back injuries) that score less than 10% still result in compensation offers. Acceptance of an award of compensation for permanent impairment does not attract income tax and does not affect any other ongoing entitlement to weekly payments or payment of medical and like expenses. Impairment is assessed in accordance with the AMA Guides to the Evaluation of Permanent Impairment (4th Edition). Once a claim for permanent impairment has been lodged with the relevant workcover insurer, the insurer has 120 days in which to accept or reject the claim under the guidelines of the workcover legislation. Page 4

5 All disputes must be referred to a Medical Panel whose opinion is binding. Injuries now covered include industrial diseases. If a worker has sustained a total loss of a body part, lump sum compensation can still be paid even if the whole body impairment is less than 10%. D Resolution of Disputes The insurer may make a decision with which you disagree, for example : To reduce weekly payments on the basis that you have a current work capacity when you do not. To terminate your weekly payments. To determine that you have no entitlement to an impairment lump sum, or to determine your impairment at a low figure. To fail to pay for a specific medical, hospital, nursing, rehabilitation or other necessary treatment expense. In cases where the insurer makes a decision which you dispute (or the insurer fails to make a decision) you may lodge an application for conciliation. If you are still dissatisfied at the conclusion of the conciliation process you may issue court proceedings. Your Conciliation Application If you are dissatisfied with any decision made by the workcover insurer then the decision may be reviewed by way of application to the Accident Compensation Conciliation Service within 60 days of the making of the decision. In certain circumstances a conciliation application can be lodged outside 60 days if there is good reason for late lodgement. The application is made on a prescribed form which we prepare for you to sign. A Conciliation Officer will be appointed to review your case. The Conciliation Officer is an impartial person whose function is to assist to resolve the dispute with the insurer. In some cases the Conciliation Officer can, with your consent, issue a binding direction on the insurer. Generally, the conciliation process permits us to obtain and submit relevant medical reports and these are paid for by the insurer. Generally, the Conciliation Officer will arrange a meeting (called a conciliation conference) between yourself, ourselves as your solicitors, the insurer and the employer within 28 days of lodgment of the application. In some cases that conciliation conference can take place by pre-arranged telephone Page 5

6 conference between all parties. The Conciliation Officer may wish to refer you to a Medical Panel for a further opinion. The Medical Panel decision is final and binding and cannot, except in very rare circumstances, be reviewed by any court. At the conclusion of the process the Conciliation Officer may make recommendations or make no recommendations on the basis that there is a genuine dispute. The finding of a genuine dispute will enable you to take the matter further by issuing court proceedings. The Conciliation Officer does have a limited power to direct arrears of compensation payments up to 24 weeks and future weekly payments for periods not exceeding 12 weeks at a time. The Conciliation Officer may also make directions from time to time concerning reasonable medical and like expenses. 3. COMMON LAW DAMAGES CLAIMS In Victoria your rights as an injured worker to sue at common law are restricted by the operation of the Victorian workcover legislation. You may have an entitlement to sue at common law if you can show someone else was at fault in causing your injury. With work accidents and injuries, this is not usually difficult, but first you must show that you suffer from a serious injury, and this is not so easy. When are common law claims available? Injuries prior to 20 October 1999 Common law actions are still available!! We strongly recommend that you contact us for urgent advice because common law rights can be lost if immediate action is not taken to preserve them. Injuries on or after 20 October 1999 Workers are now able to access common law damages if they are able to satisfy one of two sets of criteria (or gateways ) under the Serious Injury Test laid down by the legislation. The first gateway requires that the worker is assessed under the AMA Guides to the Evaluation of Permanent Impairment (4th Edition) as having a 30% whole person impairment. The assessment is made by a medical practitioner and must take place at least 12 months after the injury occurred. Where a dispute arises over the level of impairment the matter will be settled by a Medical Panel. The second gateway, which is also known as the narrative test, requires that the worker has: A permanent serious impairment or loss of body function; or A permanent and serious disfigurement; or Page 6

7 A permanent severe long term mental disorder, or permanent severe long term behavioural disturbance or disorder; or The loss of a foetus. The narrative test will be determined by solicitors for the insurer (or alternately the courts) and will take into account the consequences of the injury for the injured worker in terms of pain, suffering and economic loss. Bringing a Section 98C/98E claim is no longer a compulsory prerequisite in order for proceedings to be bought before the court, but it is often the best way to proceed. To pass the serious injury narrative test, the consequences of the injury must result in considerable pain and suffering and/or serious financial loss. If serious financial loss cannot be demonstrated, the worker will be able to claim common law damages for pain and suffering only. In order to claim common law damages for financial loss, the worker must be able to demonstrate that the injuries have resulted in a 40% (or greater) permanent loss in gross income and 40% (or greater) permanent loss of income earning capacity. In assessing such a claim, the court will review the worker s earnings in the three years leading up to the injury and will also consider what the worker s earning capacity is likely to have been for the three years after the injury, if the injury had not occurred. In making a decision in respect of common law damages, the court will also consider the opportunity the worker has for rehabilitation, retraining and suitable alternative employment. The worker must prove that such opportunities do not exist, or are not suitable. 4. WORKCOVER PROCEDURES 1. Claims under the Accident Compensation Act commence with the lodging of a claim form on your employer, who then must refer the matter to the workcover insurer within ten days. If you have the opportunity to consult us before lodging the claim form, we strongly recommend that you do so. 2. The workcover insurer will assess your application and make a decision (which must be in writing) as to whether or not the claim is accepted or rejected. A decision to reject a claim must be within 28 days of receipt of the claim form from your employer if the claim includes a claim for weekly payments. If a decision to reject is made later that this 28-day period, the claim for weekly payments is deemed to be accepted. 3. Claims can now be lodged directly with the Victorian Workcover Authority if appropriate. 4. Any decision by the workcover insurer to alter or stop any benefits already being paid must also be given in writing stating the reasons clearly. 5. The workcover insurer or their solicitors are entitled to have you examined upon reasonable notice by their own medical experts. Page 7

8 6. In certain circumstances we, as your solicitors, can arrange for you to be examined by our own medical experts, and the workcover insurer may meet the costs of such examinations. 7. We can refer any decision made by the workcover insurer against you to conciliation. 8. Any decision against you, not altered by the conciliation process, gives you the right to take legal proceedings. 5. OTHER MATTERS A. Indexation All of the money amounts referred to in this brochure are increased each year by indexation. B. Pre-employment disclosure If a worker has a pre-existing injury or disease of which they are aware and the worker fails to make a disclosure to the employer (if asked by the employer and warned of the consequences), then entitlements to compensation from any aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease may be denied in appropriate circumstances. C. Notice of injury Notice of Injury must now be given within 30 days of the worker becoming aware of the injury. Failure to give notice can have serious consequences, but is often not fatal to bringing workcover claims. D. Dependant claims on a worker s death Lump sums indexed each year, are payable depending on the number of dependants and additional monies can be payable by way of monthly instalments. E. Superannuation and disability insurance lump sums Workers have been covered by superannuation for many years. If you have been in a superannuation fund, you may have a claim for a lump sum for your disability as well as the contributions made by you and your employer. You can claim even if you are in receipt of workcover payments or Transport Accident benefits or if you have already been paid out your superannuation contributions/employer contributions. At the date this brochure was last updated, people in receipt of workcover weekly payments need to roll over all superannuation benefits into an Approved Deposit Fund instead of receiving them in a lump sum, but the Victorian government is looking into changing this peculiarly Victorian situation. Page 8

9 You may also claim a lump sum or payments for your disability if you have a life insurance policy, mortgage or loan insurance policy, income protection policy or a sickness and accident insurance policy. These superannuation and insurance benefits and rights are additional to any other entitlements you may have for compensation from workcover, the Transport Accident Commission or elsewhere. Many people suffering personal injury are not aware of these additional benefits and often overlook these important rights. The amount that is potentially recoverable can often be substantial. The likelihood is that the medical information we will be obtaining on your file will be sufficient to make a claim for you for these additional benefits under a relevant superannuation or insurance policy. To see if you have a claim, please contact us and we will organise to collect benefit statements, policies or other papers on your superannuation or insurance. We will then check what lump sums you may have and talk to you about making a claim. F. Our commitment to you. AT ALL STAGES OF YOUR WORKCOVER CLAIM, CONSTABLE CONNOR AS YOUR WORKCOVER SOLICITORS WILL ASSIST YOU IN ENSURING THAT YOU RECEIVE YOUR FULL ENTITLEMENTS AND BENEFITS UNDER THE ACCIDENT COMPENSATION ACT, AND ENSURE THAT THE DECISIONS MADE BY THE RELEVANT WORKCOVER CLAIMS AGENT ARE CORRECT. G. It s no win/no fee so talk to us!! Sadly, it is our constant experience that many clients miss out on getting the best service from us because they don t tell us when important events occur or don t want to bother us with seemingly minor matters. To get the best out of Constable Connor s no win/no fee commitment, please keep us informed of what s going on with your workcover claims. Page 9