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“A GUIDE FOR INJURED WORKERS” WORKPLACE ACCIDENT CLAIMS

A Guide for Injured Workers - PDF

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This Guide has been produced to enable those injured workers who want to be informed of their rights to workers compensation and the governments legislation.

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Page 1: A Guide for Injured Workers - PDF

“A GUIDE FOR INJURED WORKERS”

WORKPLACE ACCIDENT CLAIMS

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Introduction In June 1863 the London papers reported that a young woman had died from “simple overwork". In 1906 Karl Marx told her story: "Mary Anne Walkley was 20 years of age ... worked on an average of 16 ½ hours per day, during the season it would often be 30 hours, without a break, whilst her failing labour-power was revived by occasional supplies of sherry, port or coffee. It was just now the height of the season. It was necessary to conjure up in the twinkling of an eye the gorgeous dresses for the noble ladies, bidden to the ball in honour of the newly imported Princess of Wales. Mary Anne Walkley had worked without intermission for 26 ½ hours, with 60 other girls, 30 in one room, that afforded only just the cubic feet of air required for them. At night, they slept in pairs in one of the stifling holes into which the bedroom was divided by partitions of board. And this was one of the best millinery establishments in London. Mary Anne Walkley fell ill on Friday, died on Sunday, without, to the astonishment of Madame Elise [the proprietor], having previously completed the work in hand. The doctor, Mr Keys, was called too late to the death bed and duly bore witness before the coroner's jury that "Mary Anne Walkley” had died from long hours of work in an overcrowded workroom, which was a too small and badly ventilated bedroom. Thankfully work conditions have improved somewhat in the last century, and in conjunction with that the hybrid legal area of 'workers' compensation law' has also evolved. Bearing this in mind, approximately 32,000 Victorians are still injured as a result of work every year and 22 died as a result of their work injuries in 2008. Of these, approximately 15,000 lose more than 10 days from work due to their injury. Some of these workers will never be able to return to their pre-injury work. Work related injury can have a devastating effect on workers lives and the lives of their families. All Injured workers should seek legal navigation of the complex laws that govern workers entitlements to compensation including workers rights to weekly payments of compensation, lump sum payments for pain and suffering, loss of enjoyment of life and lost income. Most workers in Victoria have entitlements governed by the Accident Compensation Act 1985 which is administered by the Victorian WorkCover Authority (WorkCover). Irrespective of how an accident is caused, if an injury or disease is caused by, or because of work, Victorian workers can claim benefits from WorkCover.

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Contents

Introduction ................................................................................................................... 2

Chapter 1 ......................................................................................................................... 7

What is the Victorian WorkCover Authority? ................................................................ 7

Who can make a WorkCover claim? .............................................................................. 7

When is employment a significant contributing factor to your injury or disease? ....... 8

WorkCover Benefits ....................................................................................................... 8

Medical and Associated Expenses: ................................................................................ 8

Tips for injured workers away from work......................................................................9

What to do if your claim is rejected or you receive a termination notice ceasing payment of weekly payments or medical expenses. .................................................... 10

Chapter 2 - Payments and Superannuation .................................................................. 11

Weekly Payments: ......................................................................................................... 11

The first 13 weeks: ......................................................................................................... 11

After the first 13 weeks, and until 104 weeks: .............................................................. 11

After 104 weeks: ............................................................................................................ 11

Accident make up pay: ................................................................................................. 12

Chapter 3 - Serious Injury ............................................................................................ 15

What is a serious injury? .............................................................................................. 15

How do I prove serious injury? .................................................................................... 15

Does the Serious Injury Certificate entitle me to sue for both types of damages? ..... 15

What happens when I get the Certificate? ................................................................... 15 Chapter 4 – Conciliation, Court and Medical Panels .................................................. 16

What is Conciliation? ................................................................................................... 16

Going to Court to enforce your entitlements: .............................................................. 16

Medical Panels .............................................................................................................. 17

Opinions of the Medical Panels are final and binding on all parties including the courts ............................................................................................................................ 17

A guide for Injured Workers “What to expect at a Medical Panel Examination” can be downloaded from the following address:..................................................................... 17

Chapter 5- Common Law Rights .................................................................................. 18

What damages can you claim? ..................................................................................... 18

What is a Common Law Claim? ................................................................................... 18

Damages ....................................................................................................................... 18

New Common Law Rights ............................................................................................ 19

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What is Negligence? ..................................................................................................... 19

How long have I got to sue? ......................................................................................... 19

Claims for damages if a worker dies: ........................................................................... 19

Chapter 6 - Time Limitations ....................................................................................... 21

Weekly payments of compensation paid for claims lodged after 1 September 2000: 21

No fault lump sum compensation paid for injuries between 1 September 1985 and 12 November 1997: ........................................................................................................... 21

No fault lump sum compensation paid for injuries after 12 November 1997: ............ 21

No fault benefits paid to the dependants of a worker if the worker has died due to work injury: .................................................................................................................. 21

Time limits for injuries after 20 October 1999: ........................................................... 23

Loss of rights for injuries between 11 November 1997 and 20 October 1999: the Kennett Era................................................................................................................... 23

The aim of the Intensive Case Review Program or ICRP ............................................ 23

ICRP Settlements ......................................................................................................... 23

Workers seriously injured during this period can voluntarily apply for a lump sum payment instead of remaining on ongoing weekly payments if they meet the criteria below. ............................................................................................................................ 23

Time limits for injuries between 11 November 1997 and 20 October 1999 (where an exception applies): ....................................................................................................... 24

Claiming damages for injuries between 1 September 1985 and 11 November 1997: .. 24

For injuries which occurred between 1 September 1985 and 11 November 1997 you must show that you have: ............................................................................................. 24

Time limits for injuries between 1 September 1985 and 11 November 1997: ............. 25

Claiming damages for injuries before 1 September 1985: ........................................... 25

Chapter 7 – Comcare .................................................................................................... 26

Entitlements of commonwealth government employees or employees whose employer has joined the commonwealth system of compensation: ............................ 26

Chapter 8 ...................................................................................................................... 28

Return to work.............................................................................................................. 28

What is a Return to work Program? ............................................................................ 28

Employer Re-Employment Obligations before 1 March 2004 .................................... 28

Role of your treating medical practitioner ................................................................... 31

Injury Management Plan V Return to Work Plan ....................................................... 31

1. Injury Management Plan ......................................................................................... 31

3.Return to Work Plan ................................................................................................. 32

Suitable Duties ............................................................................................................. 32

Must an employer always provide suitable duties to an injured worker? ................... 32

Freedom of Information Request ................................................................................ 34

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A Summary of “What YOU should know about your claim” ...................................... 35

Quick Q & A's................................................................................................................47 Does my employer have to continue to contribute to my superannuation fund whilst I am off work? ................................................................................................................. 38

Does my weekly payment include my employer's contribution to my superannuation fund? ............................................................................................................................. 38

Does my employer have to hold my job open? ............................................................ 38

Can my employment be terminated while on WorkCover? ........................................ 38

How many times a year can I be sent for a review by the Insurance Agent? .............. 38

Can I have someone with me as support during my appointments? .......................... 38

Can a medical review officer from Workcover do a review by phone with one of my medical practitioners? .................................................................................................. 38

Can the insurance agent give surveillance that you are not aware of to their practitioners that are assessing you? ........................................................................... 39

Can surveillance influence the practitioners that the insurer sends me to see? ......... 39

Can I request surveillance tapes and reports? ............................................................. 39

Should I seek for my dispute to go to a Medical Panel? .............................................. 39

Can I appeal the decision of a Medical Panel? ............................................................. 39

Contact Directory..........................................................................................................51

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Chapter 1

What is the Victorian WorkCover Authority? The Victorian WorkCover Authority (VWA) is a Victorian government owned authority. It is the manager of Victoria's workplace safety system. Broadly, the responsibilities of the organisation are to:

Help avoid workplace injuries occurring.

Enforce Victoria's occupational health and safety laws.

Provide reasonably priced insurance for employers.

Help injured workers back into the workforce.

Manage the workers' compensation scheme by ensuring the prompt delivery of appropriate services and

Adopting prudent financial practices. The VWA manage the workers compensation scheme through supervision and management of self insured employers and otherwise the scheme is administered on behalf of the VWA by a number of WorkCover Agents. Agents are currently responsible for a range of tasks including premium collection, claim lodgement, and the delivery of benefits and rehabilitation.

Who can make a WorkCover claim? 1. If you are a worker you are usually entitled to benefits under the Accident Compensation Act 1985 if you suffer a physical or mental injury or disease Including a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease which has arisen out of or in the course of employment. Your employment must be a significant contributing factor to your injury or disease. 2. Dependants may also make a WorkCover claim. If your partner or parent dies as a result of employment you may also be entitled to make a WorkCover Claim. Who is a worker? A worker includes the following: A person (including a domestic servant or outworker) who, works under a contract of service or apprenticeship, or with an employer in work including manual labour, clerical work or any other form of work. A student performing work experience arranged or authorised by their school or tertiary college. A person who fells trees or cuts firewood or clears land for another person even if they have been contracted to provide the result rather than their labour and even if they are in partnership with another person. Some taxi drivers who do not own or are not buying their own vehicle. Some types of contractors or sub-contractors. Some share farmers.

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Some volunteers who are deemed to be a worker for the purpose of the Accident Compensation Act 1985 (for example: CFA volunteers, SES volunteers and school volunteers). Secretaries of co-operative societies

When is employment a significant contributing factor to your injury or disease? Your employment is a significant contributing factor to your injury when: (a) You are injured at work or during work activities (including lunch breaks and whilst travelling for work); or (b) You are injured while having medical treatment for a different work injury; or (c) If you are injured at school whilst attending for training required to complete your apprenticeship or otherwise expected by your employer. Your employment is a significant contributing factor to your disease if your work has caused the disease or has made a significant contribution to the deterioration of your disease. Your employment does not have to be the only cause of your disease or the only cause of the deterioration of your disease. Diseases to which work can contribute include some cancers, heart attack, strokes, and some infectious diseases (for example: Hepatitis and asthma and psychological conditions such as depression and anxiety). You cannot claim for psychological injury or disease if the stress that caused the injury or condition was created by your employer taking reasonable action to transfer, demote, discipline, change your place of employment, retrench or dismiss you. You also cannot claim if the stress is caused by a reasonable decision of your employer not to promote you, to reclassify your job, to transfer you or if your employer refuses to grant you a benefit on reasonable grounds. Remember that the action taken by your employer must be considered to be reasonable and that the action must have been made in a reasonable manner.

WorkCover Benefits No fault benefits paid by WorkCover include the following:

Medical and Associated Expenses: You can claim the reasonable medical and associated expenses that you incur while you are being treated for your injury or disease. Expenses covered include hospital expenses, nursing assistance, rehabilitation and retraining, modification of a home or car, gardening, home help, transportation to medical treatment and counselling. Remember that you are able to choose your own doctor. You do not have to receive treatment from the company doctor and you do not have to receive out-patient treatment from a public hospital. You can be treated by your specialist as a private patient.

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You can continue to receive medical treatment (if the treatment is reasonable) after you have returned to work or after weekly payments of compensation are stopped and after you retire. Your entitlement to payment of medical treatment can cease 12 months after you stop receiving weekly payments unless you need the treatment to remain at work, you require replacement of a prosthesis (e.g. artificial leg), you require further surgery as a result of the injury or disease or the treatment is necessary to ensure that your health or your ability to undertake the necessary activities of daily living does not significantly deteriorate. The WorkCover authority must give you reasonable notice if it intends to stop paying for your medical treatment or any part of your treatment. Tips for injured workers away from work • Stay in touch with your work mates. • Talk to your boss – ask about alternative duties and suitable work. • Stay active – continue with your usual activities as much as you can. • Accept help from your family and friends – talk about how they can help you. • Stay positive – focus on what you can do rather than what you can‟t.

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How to make a WorkCover claim: 1. You should first report your injury or disease to your employer. Your employer is required to keep a book for this purpose. Even if you do not at the time of injury, or at the time you find out that you are suffering a disease, intend to submit a claim you should still make a report so that if you condition deteriorates you will still be able to establish an entitlement to compensation. 2. To make a claim you must complete a claim form. Your employer should have a claim form or alternatively you can contact Worksafe and ask them to provide you with a claim form. If you are claiming weekly payments of compensation your doctor needs to complete a Certificate of Capacity and this should be lodged with your claim form. 3. You should then give the claim form and certificate to your employer, either by hand or by registered post. Your employer has 10 days from when it receives a claim to either accept it or reject it and then must forward the claim to the claims agent. The claims agent then has 28 days to make a decision either to accept or reject your claim. 4. Unfortunately not all employers forward claims on to their claims agent. As a result the law was changed on 1 July 2005 and you can also notify the VWA of your claim. If you notify the VWA of your claim, your claim is said to be accepted if either: (a) You have not received a response 28 days after the claims agent received your claim form from your employer; or (b) If your employer failed to forward your claim form, you had notified the VWA of your claim and no decision was received by you within 38 days of the notification. If you did not notify the VWA and your employer failed to pass your claim on to the claims agent within 38 days and therefore you have not received a decision, then again, your claim will also be said to be accepted. Most people are anxious to have their claim accepted as quickly as possible and therefore we recommend that you do notify the VWA of your claim on the same day that you give the claim form to your employer. 5. Normally, during the 38 day period, the claims agent will write to you and request that you attend a medical examination and they may engage an investigator to investigate the circumstance of your injury. You do not have to provide a statement to the investigator if you do not wish to. What to do if your claim is rejected or you receive a termination notice ceasing payment of weekly payments or medical expenses. We believe that you should seek legal advice to determine the best way to try and have the decision reviewed. You can request that WorkCover review their decision however without further material in support of your claim being provided it is unlikely that review would succeed. Generally, if you wish to try to change a decision made by WorkCover you should submit a request for conciliation.

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Chapter 2 - Payments and Superannuation

Weekly Payments: You can claim weekly payments if you have no current capacity for work, or cannot work all the hours you previously worked, or you can only perform alternative work at a lesser rate of pay. The amount you are paid is based on a figure known as pre injury average weekly earnings. This is normally the average ordinary time rate of pay you were paid in the 12 months before you were injured. However for the first 26 weeks in which you receive weekly payments, pre-injury average weekly earnings are calculated as follows: If you were paid overtime or shift allowances in the 12 months prior to your injury and it was likely that you would have continued to work overtime or earn shift allowances then your overtime and shift allowances are included in the calculation of pre-injury average weekly earnings.

The first 13 weeks: WorkCover pays 95% of your pre-injury average weekly earnings if you have no current capacity for work. If you have some capacity for work you are paid 95% of the difference between what you are earning now and what you were able to earn before the injury.

After the first 13 weeks, and until 104 weeks: You are paid 75% of your pre-injury average weekly earnings if you have no current capacity for work. You are paid 60% of your pre-injury average weekly earnings if you have some capacity for work but are not working. If you are back at work part time or have found alternative work at a lower rate of pay, then the payment from WorkCover is the difference between 60% of pre-injury average weekly earnings and 60% of your current earnings. If you have a current work capacity for suitable work§ and your employer fails to offer you suitable employment then you will be paid 75% of your pre injury average weekly earnings.

After 104 weeks:

You will only remain entitled to weekly payments if:

(a) You have no current capacity for suitable work and you are likely to continue indefinitely without a capacity for suitable work

Or

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(b) You are working to maximum capacity, are working at least 15 hours per week, earning at least $132.00 per week and this situation is likely to stay the same indefinitely.

Make up pay: Make up pay is an additional amount paid by your employer to top up your weekly payments of compensation. Generally this will increase the amount you receive each week to the total of your pre-injury average weekly earnings. It is only paid for a limited period, usually for the first 6 months of weekly payments or first 12 months of weekly payments. Not all workers will be entitled to make up pay. It will depend upon the basis of your employment and whether you are paid pursuant to an award or workplace agreement or individual agreement. Does my employer have to continue to contribute to my superannuation fund whilst I am off work? There is no obligation on your employer to contribute to your superannuation fund whilst you are absent from work on WorkCover. The obligation to contribute to superannuation under the Commonwealth legislation only applies to wages and salary that you receive whilst you are actually working. Under some industrial agreements, awards, workplace agreements or contracts, some employers are obliged to continue superannuation contributions for a limited period whilst a claimant is on WorkCover, for example, 12 months. Does my weekly payment include my employer's contribution to my superannuation fund? Unfortunately, your WorkCover weekly payment will not include your 9% superannuation guarantee levy contribution which is made on your behalf by your employer. Where you have a salary sacrifice arrangement for super contributions over and above your standard contribution, the extra amount can form part of your pre injury average weekly earnings on which your weekly payment under WorkCover is based. Sometimes an award or workplace agreement will specify if your employer should continue paying superannuation contributions on your behalf. It is rare for contributions to be paid for more than a limited period of time. Can I obtain a superannuation pension, whilst I am receiving WorkCover weekly benefits? You are entitled to draw on superannuation by way of pension, but your WorkCover weekly payment will be reduced on a dollar for dollar basis. This effect only applies if your superannuation pension relates the superannuation scheme for the employment in which you were injured. This will effectively mean that your superannuation pension is of little or no value to you as your weekly WorkCover payment will be reduced by the amount you receive. For this reason it is often better not to draw on your superannuation pension until your WorkCover weekly benefits cease.

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Can I obtain a superannuation lump sum, whilst I am receiving WorkCover? Drawing on your superannuation whilst you are receiving WorkCover, can affect your entitlement to WorkCover weekly payments. This effect only applies if your superannuation lump sum relates to the superannuation scheme for the employment in which you were injured. If you receive a superannuation lump sum and do not roll this over into an approved fund then your weekly payments of compensation will be suspended for a fixed period of time. The fixed period of time is calculated by dividing your normal wage into the lump sum. When this period has expired you may be entitled to return to weekly WorkCover benefits. It is therefore better to defer drawing on your superannuation entitlements whilst you continue to receive WorkCover benefits. Under some circumstances it is possible to draw on your own contributions for an approved capital purpose such as to discharge your mortgage without affecting your weekly payments. If you are thinking of doing this it is important to obtain advice before doing so. Can I claim under my income protection or superannuation disability policy whilst on WorkCover? Normally, an income protection policy is a private contractual arrangement between you and an insurance company to pay lost income as a result of injury or illness. This type of private insurance arrangement can sometimes be part of your superannuation funds benefits, an employment benefit or part of a loan agreement you might have with the bank or mortgage provider. These are independent insurance arrangements that usually do not have any impact on weekly payments of compensation from WorkCover. Each policy has its own terms and conditions. It is therefore important, however, to check the terms of your policy in order to find out whether or not:

Coverage of incapacity from a work injury is excluded under the policy. This is usually not the case.

Benefits under the policy are payable if you receive a WorkCover weekly payment.

Benefits can be reduced by any WorkCover weekly payment.

If you have an income protection policy you should read the terms and conditions of the policy and then contact the insurer to submit a claim. If a claim is rejected, various options are available such as commencing legal proceedings all referring the rejection of a claim to the insurance ombudsman. If you are uncertain about your entitlements or have had a claim for income protection rejected, contact a legal advisor. Is there any way I can claim for my lost superannuation benefits because of my injury? The only way in which lost superannuation benefits can be claimed is through a claim for Common Law damages based on the negligence of another party. If you are able to pursue damages (and you are authorised to obtain economic loss damages)

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then you can include lost superannuation as part of your claim for damages. In the circumstances, lost past contributions would be calculated, as would your likely lost future contributions. The lost income that these contributions would have earned within your fund will also be calculated and claimed. Your weekly payments may change in these circumstances: • If you return to work, either full-time or part-time (note: if you return to work doing fewer than your normal hours, you may get a „top-up‟ payment from WorkCover) • If you remain off work 12 months after your injury there will be an adjustment of your weekly payments to take into account changes in wage conditions

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Chapter 3 - Serious Injury What is a serious injury? Before you can commence a common law claim suing for negligence you must establish that you have suffered a serious injury.

How do I prove serious injury? If a worker believes he or she has a whole person impairment of 30% or more, this can be established by submitting a no fault lump sum claim for compensation. If the worker is found to have 30% or more whole person impairment he or she is deemed to have suffered a serious injury. If a worker believes he or she fits one of the definitions of serious injury, then a serious injury application is submitted to WorkCover and if rejected, an application can be made to a Court for a judge to decide if the worker has suffered a serious injury.

Does the Serious Injury Certificate entitle me to sue for both types of damages? No, a Certificate can either be granted to allow you to sue for both pain and suffering and loss of earnings, or just pain and suffering. It is very difficult to get the right to sue for loss of earnings. Unless you have a Deemed Serious Injury, you can only claim for lost earnings if you can prove that you‟re present and future earnings have dropped by at least 40%, and that this drop will be permanent. A detailed analysis of your earnings and the medical reports would need to be done to see whether you establish this loss. It is a particularly onerous requirement because the analysis of your future earnings does not look at whether you are actually working or can get a job, but whether your medical condition allows you to work, and if so, how much money you could theoretically earn. What happens when I get the Certificate? If a Certificate is granted, you then have the right to sue for damages. There are steps that must be completed before you can issue your court case, such as a settlement conference and written offers from each party. If your case does not settle during this negotiation stage, a Writ would then be issued in the County Court. This is the case where negligence and damage has to be proven and the outcome is usually determined by a judge and jury of six.

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Chapter 4 – Conciliation, Court and Medical Panels

What is Conciliation? If your claim is rejected, or WorkCover refuse to pay for your medical treatment or provide you with a notice that your weekly payments will cease you are entitled to have your dispute referred to the Accident Compensation Conciliation Service (ACCS). We recommend that you contact a legal representative at this stage so that you can be provided with the best chance of success in the review of the claims agents‟ decision. A Lawyer can provide you with advice, the request for conciliation form and if necessary, help you obtain medical reports to support your claim. The aim of conciliation is to resolve your problem without the need to resort to court proceedings. It is necessary to attend conciliation before court proceedings are be commenced. A request for conciliation should be submitted within 60 days of you receiving a decision which you wish to challenge. After your request for conciliation is received by the ACCS, a meeting with be arranged between the parties to the dispute and a conciliator will try and assist in resolving the dispute. Sometimes the conciliator will suggest that an opinion be sought from a medical panel if your problem is considered to be a medical issue. A medical panel decision is binding. When your problem is a medical issue it is usually helpful to obtain reports from your treating doctors who are often in the best position to comment on your need for treatment, your capacity for work or the relatedness of your injury to work. Lawyers are normally not allowed to attend at conciliation. There are two services available that can assist you at conciliation; Union Assist and WorkCover Assist. Some unions have their own WorkCover officer who can assist you at conciliation.

Going to Court to enforce your entitlements: Sometimes the conciliation process cannot resolve your claim and a genuine dispute is found to have occurred. When this occurs your only option if you wish to pursue your entitlement is, to consider court proceedings. We can supply you with a referral to a suitably qualified lawyer who can provide you with advice about the merits of your claim and whether it is commercially worthwhile proceeding to court. Compulsory conferencing Following the granting of a serious injury certificate, the assessment and exchange of views about damages is the subject of a compulsory pre-litigated conferencing process intended to tease out all the relevant issues and make the calculation of the damages transparent to the other party. The timetable and requirements are set out in Section 134AB(12). Within 49 days of the response date, a conference must be held between the parties. There are then 39 days in which the agent must make a statutory offer, and within 3 weeks of that offer being made, the worker must make a statutory counter-offer. The agent then has 21 days to accept or reject this offer.

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Only after those 3 weeks have expired can the worker issue proceedings for common law damages where quantum has not been agreed upon between the parties. Common law proceedings can only be issued between 22 and 51 days from the date of the rejection of the statutory counter-offer, and proceedings cannot be issued without complying with every part of this timetable, unless the VWA exercises discretion under Sections 134AB(20), (20A), (20B) or Sections 135A(6A), (6B) or (6C) of the Act.

Medical Panels

Medical Panels provide opinions on medical questions referred by the courts, conciliation, agents, self-insurers or the VWA.

Medical Panels are constituted pursuant to the Accident Compensation Act 1985 and the Wrongs Act 1958.

The Medical Panels can provide an opinion on:

Medical questions which relate to determining a worker‟s entitlement or continuing entitlement to statutory benefits

A worker‟s level of permanent impairment, including commenting on any total loss injury(s)

Opinions of the Medical Panels are final and binding on all parties including the courts

An opinion must be formed by the Medical Panels within 60 days of the referral date unless an extension of time is requested.

Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give to the referring body, its opinion in writing.

A guide for Injured Workers “What to expect at a Medical Panel Examination” can be downloaded from the following address: http://www.medicalpanels.vic.gov.au/wps/wcm/resources/file/eb0ff80be07431a/Guide%20for%20WorkCover%20Claimaints.pdf

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Chapter 5- Common Law Rights

What damages can you claim? Only if serious injury has been established in reference to your pain and suffering, can you can claim damages to compensate you for your pain and suffering and loss of enjoyment of life. Only if serious injury has been established in reference to your capacity to earn income, can you claim damages to compensate you for your loss of wages or loss of the ability to earn wages into the future. If you recover damages for your loss of earnings and earning capacity you are required to repay any amount you have received from WorkCover for weekly payment of compensation. If you have received benefits from Centrelink following your accident, these must also be repaid. You may also be unable to receive benefits from Centrelink for a period of time following your accident. No claim can be made for medical expenses incurred by you in the past, or for medical expenses you may incur into the future. As a result you are not required to repay WorkCover money for medical and like expenses paid and your right to claim future medical treatment from WorkCover is unaffected. What is a Common Law Claim? Some work related injuries are caused due to someone‟s fault or negligence. This can be because of your employer‟s failure to provide a safe workplace, although it can include the acts of a third party with no connection to your employer. A claim seeking compensation for an injury where negligence is involved is called a common law claim. The compensation sought in a common law claim is called damages. A common law claim is separate and in addition to your entitlements under the WorkCover system.

Damages There are 2 main categories of damages sought in a common law claim:

1. Pain and suffering, or general damages – this is compensation for the pain and suffering you have endured and will continue to endure, and your loss of enjoyment of life;

2. Past loss of earnings and future loss of earning capacity – compensation for wages lost because you have been unable to work, and/or are unable to work into the future.

Even where your injury was caused by your employer or another person‟s fault, you do not automatically have the right to sue for damages. You must first establish:

1. That you have suffered a serious injury; and 2. That your employer (or someone else) was negligent.

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New Common Law Rights If negligence and serious injury can be proved then you can claim damages. According to Section 134AB(2) of the Act a worker can now only recover damages if their injury arises out of or is due to the nature of employment when employment of that nature was a significant contributing factor, and the injury is a serious injury which arose on or after 20 October 1999.

What is Negligence? People owe other people a duty of care to take reasonable steps to ensure safety. Employer s, in particular, are required to provide a safe system of work and perform risk assessments of the workplace to try and reduce the risk of injury. A risk that must be addressed is one that is not far fetched or fanciful and the steps that must be taken to reduce the risk are those that would be considered reasonable. You cannot sue just because your employer has been negligent. You must have suffered serious injury and damage as a result of the negligence. A near miss unless psychiatric injury is then suffered, is not enough. It is difficult for workers to determine what the law would consider to be negligent conduct by an employer or other party. We therefore recommend that you seek legal advice to determine if your injury/s have been caused by negligence.

How long have I got to sue? A common law claim must be commenced within 6 years of the date of injury. Injuries that arise over time such as psychiatric injuries should ideally be commenced within 6 years of the onset of symptoms. You should seek advice well before the 6 years expires, however, as preparing a case takes some time. Even if you don‟t think your injury is serious, you should at least obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.

Claims for damages if a worker dies: If a worker dies due to work related injury or disease the workers dependants have the right to sue for damages. Generally this is restricted to the right to claim damages for economic loss and the cost of the loss of the services the worker used to provide. For example, the deceased worker may have provided care for children and performed work around the house such as repairs and maintenance. Generally, dependants of a deceased worker cannot claim for the pain and suffering and loss of enjoyment of life they have suffered as a result of the death of the worker. This is considered by the courts to be normal grief that everyone will inevitably face. If however you have suffered a psychiatric injury as a result of the death of the worker, in certain circumstances you will be able to claim for the injury caused to you by that death. This can include your pain and suffering, loss of enjoyment of life, as well as any loss of income suffered as a result of your psychiatric injury.

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If a person has died after commencing proceedings, the executor of the person s will can continue the claim but only claim for the past pain and suffering, loss of enjoyment of life and loss of earnings caused by the injury. If a worker dies as a result of an dust related disease or disorder, the law states that if proceedings were commenced before the person died the executor of the persons will can continue the claim and claim all the damages that the person could have claimed but for their death and also claim damages for the curtailment of the deceased s expectation of life.

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Chapter 6 - Time Limitations

Weekly payments of compensation paid for claims lodged after 1 September 2000: The amount of compensation paid to replace your wages varies depending upon how many weeks you have been in receipt of payments. One week of compensation is any week in which you have been paid any amount for loss of wages. For example, a week of compensation includes a week in which one hour of compensation is paid. No fault lump sum compensation: Your entitlement to no fault lump sum compensation will depend upon the date you were injured, whether you have sustained a permanent injury and the level of permanent injury sustained.

No fault lump sum compensation paid for injuries between 1 September 1985 and 12 November 1997: If you were injured prior to this date you may be entitled to lump sum compensation for permanent damage to one or more body parts listed in s.98 of the Accident Compensation Act 1985. Compensation payable is based on the percentage loss of the body part that is assessed. In addition, a small amount for pain and suffering caused by the loss may be paid in some circumstances.

No fault lump sum compensation paid for injuries after 12 November 1997: For all injuries suffered between 12 November 1997 and 3 December 2003 no fault compensation can only be paid if you have suffered 10% whole person impairment for a physical injury or 30% whole person impairment for a primary (directly caused) psychiatric injury. If you were injured after 3 December 2003 and your injury is to your spine, arms or legs, compensation is payable if you have a 5% whole person impairment or more. If you have suffered a total loss of a body part, compensation may be payable even if the worker has not suffered a 5% or 10% whole person impairment.

No fault benefits paid to the dependants of a worker if the worker has died due to work injury: If you or your children were partially or totally dependent upon the income of a worker who has died in the course of employment or because of injuries which were caused by work, then you or your children will be entitled to benefits. Where a worker dies on or after 12 November 1997 a worker„s dependant‟s who are entitled to claim are: Children under the age of 16 years, or under the age of 21 years and still a full time student and who were wholly, mainly or partly dependent upon the deceased workers earnings.

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A dependant partner who was wholly or mainly dependant on the deceased worker s income. A partially dependent partner When deciding if a partner was wholly or mainly dependent on the worker's earnings at the time of the worker s death no notice is taken of any money which the partner had earned or was earning from his or her own work or to savings from their own wages. There are two benefits that can be paid. One is a lump sum of compensation which is determined by the Accident Compensation Act 1985. Formulae are set out in the Act which determines how the benefit is divided between dependants. The second type of benefit is compensation in the form of weekly payments of a pension. Again, formulae are set out in the Act determining the amount of the pension which is to be paid. You are also entitled to claim for the reasonable costs of the deceased worker s burial or cremation. When deciding what is a reasonable cost WorkCover must consider the service or provision actually rendered; and the necessity of the service or provision in the circumstances; and any guidelines issued by WorkCover. WorkCover will also pay the reasonable costs incurred in Australia of family counselling services provided to family members by a medical practitioner or registered psychologist. A family member is said to be a partner, parent, sibling or child of the worker or of the worker's partner. A parent of a worker includes a person who has day to day care and control of the worker. For injuries after 20 October 1999 serious injury has the following alternate definitions: 30% whole person impairment Serious permanent impairment or loss of a body function Permanent serious disfigurement Permanent severe mental or permanent severe behavioural disturbance or Disorder or Loss of a foetus. Permanent means that the probability is that the impairment or other condition will last and not mend or repair to any significant extent: the injury is likely to last for the foreseeable future. For an injury to be assessed as serious it must be found, with respect to pain and suffering or loss of earning capacity (and when compared with other impairments of a similar type) to be more than significant or marked and at least as being very considerable. For an injury to be severe it must fairly be described as being more than serious to the extent of being severe. If you wish to claim damages for loss of earnings, or loss of earning capacity, an additional test must be met: you must show that you have suffered a 40% loss of your capacity to earn income, comparing the amount that previously represented your earning capacity with the amount you are capable of earning into the future.

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The amount you are capable of earning into the future is assessed by examining what you should be capable of earning in suitable employment following rehabilitation and re-training. If the Court cannot determine what you should be capable of earning then you will fail to satisfy this test.

Time limits for injuries after 20 October 1999: A worker has 6 years within which to commence a common law claim, however the periods during which their serious injury application, or no fault lump sum claim are being considered are not included when calculating the 6 year period. Alternatively, sometimes an extension of the limitation period may be granted in exceptional circumstances.

Loss of rights for injuries between 11 November 1997 and 20 October 1999: the Kennett Era On 11 November 1997 the Kennett government took away worker„s right to sue for damages. In October 1999 the Bracks government restored a workers right to sue for damages. However the government did not restore the right of people injured between 11 November 1997 and 20 October 1999 to sue for damages and only restored the rights of those injured after the date upon which the Bracks government was elected. This means that if you were injured between 11 November 1997 and 20 October 1999 you are unable to sue for damages and only have access to your no fault entitlements. For Workers who were injured between 12 November 1997 and 19 October 1999, the Intensive Case Review Program or ICRP was designed to fill this gap.

The aim of the Intensive Case Review Program or ICRP

The purpose is to review files for each worker injured between the dates above and is still on weekly benefits after more than 104 weeks. This review ensures that the claims management had amongst other things:

1. supported seriously injured workers 2. the services provided met their individual needs 3. return to work options were explored where there was a capacity to work 4. potential access to all WorkCover statutory entitlements (including lump-

sum benefits) was considered

ICRP Settlements Workers seriously injured during this period can voluntarily apply for a lump sum payment instead of remaining on ongoing weekly payments if they meet the criteria below. The settlement amounts are set by a statutory formula which depends on the worker‟s net weekly compensation and his or her age next birthday after qualifying and lodging an expression of interest.

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Eligibility for ICRP

To be eligible to apply for an ICRP settlement, a worker would have to meet the following criteria:

1. The injury for which the worker is receiving weekly compensation must have occurred between 12 November 1997 and 19 October 1999

2. The worker must have received weekly compensation for at least 104 weeks for that injury and is continuing to receive it

3. The worker must have been classified as having no current work capacity indefinitely for that injury

4. The worker must have been assessed in accordance with the Act as having a whole person impairment of 30% or more for that injury

The only exception to this rule is when you are paid WorkCover benefits because of the operation of another act of parliament such as volunteers who are deemed to be workers by acts such as the Education Act 1958 or the Country Fire Authority Act 1958.

Time limits for injuries between 11 November 1997 and 20 October 1999 (where an exception applies): If you were injured between 11 November 1997 and 20 October 1999 and fit within one of the exceptions to the removal of workers‟ rights to sue, then you have three years within which to commence proceedings. Alternatively, sometimes an extension of the limitation period may be granted in exceptional circumstances. If you are under the age of 18 years at the time you are injured or you are a person under a mental disability you have 6 years from the time that you turn 18 years of age or from the date at which you recover from your mental disability respectively.

Claiming damages for injuries between 1 September 1985 and 11 November 1997: If you were injured between 1 September 1985 and 11 November 1997 but the incapacity caused by your injury was not known by you to be serious until the last three years then you are still entitled to sue for damages. You must still prove negligence and you must still prove serious injury. The definition of serious injury is different to that which applies after 20 October 1999.

For injuries which occurred between 1 September 1985 and 11 November 1997 you must show that you have: Serious long-term impairment or loss of a body function, or Permanent serious disfigurement or severe long-term mental or severe long-term behavioural disturbance or Disorder or loss of a foetus.

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Time limits for injuries between 1 September 1985 and 11 November 1997: If you were injured between 1 September 1985 and 11 November 1997 and you did not previously know that the incapacity arising from your injury was serious, you have three years from the date that you reasonably became aware of the serious nature of your incapacity. For example, if you were injured, but your injury or disease was not diagnosed until a much later time, or your injury later deteriorated, causing serious consequences you could not have known that your injury was serious. It is from that date that your three year limitation period begins to run. Claiming damages for injuries before 1 September 1985: Sometimes something can happen a long time ago but only cause injury or damage at a much later stage. An example of this is asbestos exposure. You may have been exposed to asbestos a very long time ago, however there were no signs that that you had been injured by the exposure. If you are diagnosed at a later time, the law that applies to you is not the law that applies at the time you find out about your injury, but the law that was in place at the time your injury occurred. For injuries or diseases caused by work or because of work before 1 September 1985 there is no restriction on your right to sue for damages. You are entitled to claim damages for your pain and suffering, loss of enjoyment of life, your economic loss and your past and future medical expenses. You do not have to prove serious injury, but you must still prove negligence. Time limits for injuries between 1 September 1985 and 11 November 1997: If you have contracted a disease or disorder proceedings may be brought not more than 6 years from the date on which you first knew (a) that you had suffered those personal injuries; and (b) that those personal injuries were caused by the act or omission of some person. Alternatively, sometimes an extension of the limitation period may be granted in exceptional circumstances. If you are under the age of 18 years at the time you are injured or you are a person under a mental disability you have 6 years from the time that you turn 18 years of age or from the date at which you recover from your mental disability respectively.

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Chapter 7 – Comcare

Entitlements of commonwealth government employees or employees whose employer has joined the commonwealth system of compensation: If you are employed by the commonwealth government or your employer has joined the commonwealth system of compensation your rights are slightly different to people who receive WorkCover benefits. Your rights are not governed by the Accident Compensation Act 1985 but instead by the Safety, Rehabilitation and Compensation Act 1988. You may be covered by this Act if, for example, you work for Telstra or Australia Post. Similarly to WorkCover, if you have suffered an injury or disease that occurs in the course of employment or is materially contributed to by work you may be able to claim compensation for your injury/s or disease. ComCare (or your employer) may pay your medical and like expenses and may pay you weekly payments of compensation. If you are totally incapacitated for work, for the first 45 weeks of incapacity you are entitled to weekly payments of compensation equal to 100% of your pre-injury usual weekly earnings. If you are partially incapacitated you are paid ComCare benefits for the difference between your actual earnings and your usual weekly earnings.

After the first 45 weeks of payments, if you are still incapacitated, you are entitled to ongoing weekly payments of compensation of 75% of your pre-injury usual earnings. If you are partially incapacitated you are paid between 80% and 100% of the difference between your actual earnings and your usual earnings. The amount paid depends upon the number of hours you are actually working. You can continue to be paid to 65 years of age. Similar to WorkCover, you may be entitled to no fault lump sum compensation if you have a permanent injury. If you can prove that you have suffered a 10% whole person permanent impairment you are entitled to a lump sum. The test used to determine your percentage level of impairment is similar, but different, to that used by WorkCover. If you are found to have suffered a 10% or more whole person permanent impairment you have the choice about whether you wish to accept this amount (and continue to receive weekly payments of compensation, if appropriate) or elect to commence a common law claim for damages. That is, sue the commonwealth for damages to compensate you for the injuries caused by your employer. You should always seek legal advice before deciding to accept the no fault lump sum compensation or elect to sue for damages. If you choose to sue for damages, you are restricted to claiming damages for your pain and suffering and loss of enjoyment of life and cannot claim for your lost earnings. You also lose your right to remain in receipt of weekly payments of compensation. Generally, you have 6 years to sue for damages however in some circumstances this time limit may be extended.

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If a worker is employed by the commonwealth government or an employer who has joined the commonwealth system of compensation dies, the worker s dependents are able to claim compensation. There is a lump sum payable and if the claimant is a dependent child of the deceased, then a weekly payment can also be claimed. Reasonable funeral expenses will also be paid for.

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Chapter 8 - Return to Work

Return to work The best outcome for an injured worker, and their employer, is that the worker remains at work or returns to work as soon as possible, preferably in their pre-injury job at a workplace of the injury employer.

What is a Return to work Program? A return-to-work program consists of the formal policy and procedures that an organisation must have in place to help injured workers with their recovery and return to the workplace. It outlines an organisation‟s commitment to assist injured workers with accessing necessary treatment and rehabilitation and specifies the steps to be taken to achieve a safe, timely and durable return-to-work. A return-to-work program must be consistent with the organisation‟s insurance company‟s policy and procedures for managing workplace injuries (i.e. the injury management Program). A return-to-work program must be displayed at workplaces and workers must be notified of the program. A copy of the program must be provided to any worker on request.

Employer Re-Employment Obligations before 1 March 2004

Employers have an obligation to provide suitable duties to an injured worker for a period of 12 months where a claim for weekly payments has been accepted.

How the period of 12 months is calculated is dependent on whether the date of injury is before 1 March 2004 or whether it is on or after that date.

During the 12 month period, if the worker: No longer has an incapacity for work, the employer must Provide employment for the worker in a position which is the same as or equivalent to the position the worker held before the injury; or has a current work capacity, the employer is required to provide the worker with suitable employment

After the 12 month obligation period ends, failure to re-employ or provide suitable employment is not an offence, but employers are still encouraged to do so.

Employer Re-Employment Obligations after 1 March 2004

Employers re-employment obligations apply within the period of up to 12 months (or the sum of periods not more than 12 months in aggregate) first occurring after a worker's injury during which the worker has an incapacity for work, this applies to injuries prior to 1 March 2004.

S122(1)(a) provides that if during the 12 months a worker no longer has an incapacity for work their employer is obliged to provide them with a job that is the same or equivalent to the one they had before the injury, this applies to injuries prior to 1 March 2004

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Employer re-employment obligations apply within the period (or sum of periods) up to 12 months from the time the claims is accepted or determined, this applies to injuries on or after 1 March 2004

Workers are entitled to receive OR services from an approved OR provider chosen by the worker from a list of the names of not less than three approved OR providers (where available) nominated by the agent, employer or self-insurer.

A list must be compiled with regard to the following (as far as possible):

· The worker‟s injury type

· The type of OR service required

· Where the worker resides

· Where the OR provider is requested to provide the service

If the agent, self insurer or employer does not nominate such a list, the worker is able to choose an approved OR provider of the worker‟s choice.

Worksafe, your employer and OR provider must consider the following RTW hierarchy as a guide in determining the most appropriate case management for a worker who has been injured and needs to RTW:

1 same employer, same job

2 same employer, similar job

3 same employer, different job

4 different employer, same job

5 different employer, similar job

6 different employer, different job

'Suitable employment' … means employment for which the worker is currently suited (whether or not that work is available), having regard to the following -

(a) The nature of the worker's incapacity and pre-injury employment

(b) The worker's age, education, skills and work experience

(c) The worker's place of residence

(d) The details given in medical information including the medical certificate supplied by the worker

(e) The worker's return to work plan, if any

(f) If any occupational rehabilitation services are being provided to or for the worker

'Current work capacity' means the worker is not able to return to work in their old job but is able to return to work in suitable employment.

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'No current work capacity' means the worker is not able to return to work in their old job or in suitable employment.

'Occupational rehabilitation service' means any of the following services provided by a person who is approved by the VWA as a provider of OR services:

(a) Initial rehabilitation assessment

(b) Functional assessment

(c) Workplace assessment

(d) Job analysis

(e) Advice concerning job modification

(f) Occupational rehabilitation counselling

(g) Vocational assessment

(h) Advice or assistance concerning job-seeking

(i) Vocational re-education

(j) Advice or assistance in arranging vocational re-education

(k) Preparation of a return to work plan

(l) The provision of aids, appliances, apparatus or other material likely to facilitate the return to work of a worker after injury

(m) Modification to a workstation or equipment used by the worker that is likely to facilitate the return to work after an injury

(n) Any other service authorised by the Authority - but does not include a hospital service

Injury management helps injured workers get back to work quickly and safely. The cooperation and participation of the employer, the worker, the treating doctor and the insurance company in the injury management process is essential for achieving the best possible outcomes. Having policies and procedures in place before an injury happens and knowing how to develop plans to help injured workers, is the responsibility of both the employer and the insurance company. The workers compensation legislation entitles workers to receive legal representation (paid by the insurer) and assistance in all areas including injury management return to work, obtaining suitable employment and the development of work options.

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Role of your treating medical practitioner

The primary role of the medical practitioner or the nominated treating doctor is to

oversee the medical management of a worker. The insurer has no right to tell a

nominating treating doctor what treatment can or cannot be provided. The insurer

can only decline to pay for such treatment if it does not consider it is reasonable and

necessary.

The nominated treating doctor is to provide a medical certificate that accurately

reflects the workers‟ level of fitness for work based on the doctor‟s clinical opinion.

It is the doctor‟s responsibility to determine fitness for work, not the insurer or a

rehabilitation provider. Often a rehabilitation provider places undue pressure on the

doctor to complete a medical certificate which certifies the worker fit for a particular

type of work. This behaviour is against the intention of the Legislation and your

solicitor should be notified immediately if this occurs.

A nominated treating doctor is also responsible for providing information to the

insurer, the rehabilitation provider and other treating practitioners to assist in the

worker‟s management and return to work.

You are allowed to change your nominated treating doctor and approval should be

sought from the insurer prior to this occurring.

Injury Management Plan V Return to Work Plan

There are two types of plans intended to help you recover and return to work as soon

as possible.

One is drawn up by the insurance company and is called an “Injury Management

Plan”, the other is written by a rehabilitation provider and is called a “Return to

Work Plan”.

1. Injury Management Plan

The insurance company is required to consult with the injured worker, the employer

and the treating doctor prior to developing the injury management plan.

The injury management plan outlines all the services required to return the worker

to the workplace. After establishing an injury management plan, the employer and

the injured worker receive a copy of the plan from the insurance company and they

both have an obligation to comply with it.

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3. Return to Work Plan

The return to work plan is usually a written formal offer of suitable duties by the employer to the injured worker. It is designed to make clear what the worker can and cannot do when they return to work. The plan must be agreed by all relevant parties including you, your supervisor, nominated treating doctor and rehabilitation provider.

Suitable Duties

Suitable duties are short term work duties agreed between the employer and you to

assist the injured worker‟s rehabilitation. Suitable duties must comply with the

current medical certificate and they include: -

Parts of the job you were doing before the injury; The same job but on reduced hours; Different duties all together; Duties at a different site; Training opportunities; Or a combination of all of the above.

The definition of suitable duties states that the following must be taken in to account:

-

The Medical Certificate in which the treating doctor will list your capabilities; Your age, education and work skills; Where you live; The duties must be useful to the employer‟s trade or business; The duties must comply with the injury management plan; and The duties must not be demeaning or token jobs.

Must an employer always provide suitable duties to an injured worker?

The answer to this question is yes. In practice however this does not always occur.

The reality is that an employer must provide suitable duties if it is reasonably

possible to do so.

If the employer fails to provide suitable duties it will affect the employer in two main

ways: -

The cost of the claim will increase as a worker is entitled to special weekly compensation benefits (pursuant to Section 38) for up to 52 weeks. This will increase the cost of the workers compensation premium on the employer.

The Workers Compensation Commission can impose a penalty of up to $5,000.00.

An employer does not need to provide suitable duties if you voluntarily resign or

employment is terminated for reasons other than the injury.

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An employer must not dismiss an employee for providing information or assisting in an inspection by the VWA.

An employer must not dismiss a worker from employment because the worker has given the employer notice of an injury, taken steps to pursue a claim for compensation, given or attempted to give a claim for compensation to the employer, agent or the VWA

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Freedom of Information Request

Claim name and number. To the Freedom of Information Officer, I hereby request my file unabridged and complete under the Freedom of Information Act 1982 and Section 107 of the Accident Compensation Act 1985. I request all notes on computer file, notebook or note pad. I request all photography and surveillance notes including; All still video and all audio recordings including all audio files where my claim is or has been the main topic of discussion. Please send this as soon as possible to (Legal Firms name and address, or G.P. name and address) Or Download the F.O.I form from Worksafe Victoria: http://www.worksafe.vic.gov.au/wps/wcm/resources/file/ebc6044359e8d0e/FOR556_freedom_information_request_form.pdf

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“A Summary of “What YOU should know about your claim” You are entitled to treatment from a doctor of your choice. You do not have to be treated at a public hospital or by a work doctor if you don‟t want to. WorkCover pays reasonable costs of medical hospital, nursing, personal and household services together with occupational rehabilitation and ambulance services. Personal and household services include: Attendant care; Counselling; Household help, for example, cleaning and gardening services; Modifications to home or car; Transportation costs.

WorkCover must pay the reasonable costs of travelling for purposes of receiving medical treatment or rehabilitation. If you are claiming taxi expenses, they should be approved by WorkCover first. If you use your car you should record the kilometres travelled and submit the details to WorkCover for payment. WorkCover must pay the reasonable costs of rehabilitation and retraining, providing the occupational rehabilitation service is provided by an approved rehabilitation provider. If this is not offered to you, you should request it. You must cooperate with rehabilitation and retraining, as failure to do so can lead to the termination of your payments, and may jeopardise other entitlements under WorkCover. You should keep a record of all attempts to return to work with your employer or other retraining. This will be useful in protecting your rights. Any return to work plan or rehabilitation program should only be agreed to if you‟re treating doctor approves it. Any return to work plan or rehabilitation program should be provided to you in writing. Generally your employer has an obligation to provide you with suitable employment within 12 months of your claim being accepted. You should keep a general diary of the impact the injury has on your social and family activities, and ability to participate in any sporting activities and hobbies. You do not have to talk to investigators appointed by the Victorian WorkCover Authority to investigate your claim. You can request that WorkCover send you copies of any medical reports obtained in your claim under the Freedom of Information Act. Generally these reports will be forwarded to your treating doctor if you request.

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You are entitled to payment of the reasonable costs of obtaining medical reports from your treating doctors. If you cannot supply a WorkCover medical certificate, you can still be paid compensation, subject to being able to prove that you were unfit for work due to a work injury. An application can be made to a Court in these circumstances. Any decision that WorkCover makes can be reviewed, whether it be the rejection of your claim, the refusal to pay medical expenses, or the failure to respond to a request for payment of medical treatment, for example, surgery. Generally you will have 60 days to review the decision (or the failure to make a decision) by referring the matter to the Accident Compensation Conciliation Service. Sometimes WorkCover do not respond promptly to a specific request for treatment, surgery or services such as home help. We believe 28 days is a reasonable period for them to consider your request. If a decision is not made within that time, refer the matter to the Accident Compensation Conciliation Service. WorkCover will pay for you to obtain a second opinion regarding any proposed medical treatment. If, for example, surgery is recommended, it is up to you to decide whether to proceed with it. You are under no obligation to do so. Should the matter not settle at Conciliation and a genuine dispute certificate is issued, then you can proceed to the Magistrates‟ Court or County Court. Your weekly payments are calculated by looking at your pre-injury average weekly earnings. This can include overtime and shift allowances for the first 26 weeks of your incapacity for work. Even if you are casual, part time or a subcontractor, you can still claim WorkCover entitlements. You should ensure the details on the reverse side of the medical certificate are complete and accurate otherwise WorkCover will not pay your weekly payments. If you are away interstate or overseas for longer than 28 days special permission must be obtained from WorkCover for an extended certificate. If your company closes down, your WorkCover entitlements will not be affected. You will become a direct payee of WorkCover. Weekly payments must be paid within seven days of falling due, and in accordance with your usual pay period. If this does not occur you should refer the matter to Conciliation. WorkCover rarely, if ever, advises injured workers that they can claim:

(i) A lump sum, if they have a 10% or more whole person (physical) impairment (or a 5% or more whole person (physical) impairment to the back, neck, arms or legs for injuries on/after 3/12/2003) or a 30% or more whole person (psychiatric) impairment.

(ii) Common law damages for pain and suffering, and/or loss of earning capacity for seriously injured workers.

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If you claim Centrelink benefits while waiting for WorkCover to decide whether to accept or reject your claim, you will have to repay those benefits. If you use annual leave while waiting for WorkCover to decide whether to accept or reject your claim, your leave will be re-credited.

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Quick Q & A’s

Does my employer have to continue to contribute to my superannuation fund whilst I am off work? There is no obligation on your employer to contribute to your superannuation fund whilst you are absent from work on WorkCover.

Does my weekly payment include my employer's contribution to my superannuation fund?

Unfortunately, your WorkCover weekly payment will not include your 9% superannuation guarantee levy contribution which is made on your behalf by your employer

Does my employer have to hold my job open?

The WorkCover legislation requires your employer to provide you with suitable employment (if you remain partially incapacitated) or equivalent employment (if you have recovered) within the first 12 months of your absence from work.

Can my employment be terminated while on WorkCover? Legally you can‟t be sacked for being hurt at work or for making a workers‟ compensation claim. If it does happen, report it to your case manager and/or seek independent legal advice. It is an offence for an employer to sack you solely because you have made a claim and/or are on Workcover.

How many times a year can I be sent for a review by the Insurance Agent? Once every two years they can send you to one or more of their practitioners which could include a Psychologist, Psychiatrist, Surgeon, Physiotherapist, Vocational Assessors and others. If you feel they are sending you excessively to see too many doctors, you should forward in writing a letter of complaint to the insurer and to Workcover.

Can I have someone with me as support during my appointments? Yes you can.

Can a medical review officer from Workcover do a review by phone with one of my medical practitioners? We suggest you advise your medical treaters and your insurance Agent that you do not give consent to verbal reviews by phone but you must and will consent to be sent to see one of their practitioners for a written report.

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An Examiner retained by the WorkCover Authority is required to conduct their examinations on a proper professional basis. If you believe that the Examiner has failed to meet the standard you can report the matter to the WorkCover Authority. If the examination involved serious unprofessional conduct, the matter could also be reported to the Medical Board of Victoria. Will Workcover try to film me? The WorkCover Authority considers that surveillance of a claimant is a legitimate tool for management of a claim. The use of surveillance can occur at any time during a claim and is not limited just to long term claims or court cases. Some, information from surveillance can cause considerable damage to a WorkCover claim. They will check on facebook and online communities for any information on you If you have information that your surveillance has breached a law such as trespass, photographing children without permission etc then you can report that conduct to direct to the “Assessment Centre” on 03 9641 1051 or contact the WorkCover Authority

Can the insurance agent give surveillance that you are not aware of to their practitioners that are assessing you? Yes, without you even being aware that you where under surveillance. Can surveillance influence the practitioners that the insurer sends me to see? Yes, most definitely so be clear and precise when dealing with all treating practitioners.

Can I request surveillance tapes and reports? Yes, copy and paste the Freedom of Information request attached make a copy, and send it to the Insurer or Worksafe or their Providers.

Should I seek for my dispute to go to a Medical Panel? This is a complex issue. A decision of the Medical Panel is usually binding on the parties and a court is generally required to follow its decision.

Can I appeal the decision of a Medical Panel? The decision of the Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error. It is not possible to appeal the decision of a Panel solely on the basis that it came to the wrong conclusion.

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Disclaimer: This information is of a general nature and should not be used to ascertain the entitlements of any particular individual. There can be exceptions to the above circumstances and

individuals should obtain specific advice to address their circumstances. Further the law changes and information contained herein may no longer be accurate

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Contact Directory

Accident Compensation Conciliation Service (ACCS) Level 9, 460 Lonsdale Street, or GPO Box 251, Melbourne VIC. 3001 Ph: 03 994 0111 Toll Free: 1800 635 960 Email [email protected] Web: http://www.conciliation.vic.gov.au/ Australian Human Rights Commission. Level 8, Piccadilly Tower 133 Castlereagh Street, SYDNEY, NSW 2000 GPO Box 5218, SYDNEY NSW 2001 Telephone: (02) 9284 9600 Web: http://www.heroc.gov.au/ Complaints Infoline: 1300 656 419 Email: [email protected] General enquiries and publications: 1300 369 711 TTY: 1800 620 241 Fax: (02) 9284 9611SMS for info pack or complaint form: 0488 744 487 (0488 RIGHTS) Australian Industrial Relations Commission (AIRC) Principal Level 4, 11 Exhibition Street , Melbourne or GPO Box 1994, Melbourne, 3001 Tel: (03) 8661 777 Fax: (03) 9655 0401 Out of hrs emergency: 0419 960 157 Email: [email protected] Industrial Registrar: Doug Williams Victoria Level 4, 11 Exhibition Street, Melbourne GPO Box 1994, Melbourne, 3001 Tel: (03) 8661 7777 Fax: (03) 9655 0401 Out of hrs emergency: 0419 960 157 Email: [email protected] Deputy Industrial Registrar: Ross McCarroll New South Wales Level 8, Terrace Towers, 80 William Street East Sydney NSW 2011 Tel: (02) 8374 6666 Fax: (02) 9380 6990 Out of hrs emergency: 0419 318 011 Email: [email protected] Deputy Industrial Registrar: Barry Jenkins

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Queensland Level 14, Central Plaza Two, 66 Eagle Street Brisbane or PO Box 5713, Central Plaza Brisbane QLD 4001 Tel: (07) 3000 0399 Fax: (07) 3000 0388 Out of hrs emergency: 0419 335 202 Email: [email protected] Deputy Industrial Registrar: Damien Staunton South Australia Level 7, Riverside Centre, North Terrace Adelaide or PO Box 8072,Station Arcade SA 5000. Tel: (08) 8308 9863 Fax: (08) 8308 9864 Out of hrs emergency: 0419 563 601 Email: [email protected] Deputy Industrial Registrar: Lynne Stapylton Western Australia Floor 12111 St Georges Terrace, Perth or GPO Box X2206,Perth WA 6001 Tel: (08) 9464 5172 Fax: (08) 9464 5171 Out of hrs emergency: 0448 275 936 Email: [email protected] Deputy Industrial Registrar: Ross McCarroll Tasmania 1st Floor, Edward Braddon Commonwealth Law Courts Building, 39-41 Davey Street, Hobart or GPO Box 1232M, Hobart Tas 7001 Tel: (03) 6214 0200 Fax: (03) 6214 0202 Out of hrs emergency: 0418 124 021 Email: [email protected] Deputy Industrial Registrar: Ross McCarroll Australian Capital Territory 2nd Floor, CML Building17-21 University Avenue, Canberra or GPO Box 539, Canberra City ACT 2601. Tel: (02) 6209 2400 Fax: (02) 6247 9774 Out of hrs emergency: 0408 447 112 Email: [email protected] Deputy Industrial Registrar: Christine Hayward

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Northern Territory 10th Floor, Northern Territory House, 22 Mitchell Street, Darwin or GPO Box 969,Darwin NT 0801. Tel: (08) 8936 2800 Fax: (08) 8936 2820 Out of hrs emergency: 0418 895 495 Email: [email protected] Deputy Industrial Registrar: Neil McHattie Accident Compensation Act Copies - Information Victoria Ph: 1300 366 356 Cost: $62.75 (at time of printing) Payment Options: Credit Card orders are available over the phone Or you can pick up. Australian Lawyers Alliance Suite 5, Level 7189 Kent Street Sydney NSW 2000 GPO Box 7052 Sydney NSW 2001 Phone: 02 9258 7700 Fax: 02 9258 7777 Email: [email protected] Comcare: 1300 366 979 Web: www.comcare.gov.au Canberra Office (ACT OHS Unit) Level 4 (Reception) 14 Moore Street Canberra ACT 2600 Fax: (02) 6248 0322 Melbourne Office (Victoria/Tasmania OHS Unit) Level 2121 William Street Melbourne VIC 3000 Fax: (03) 9620 4721 Sydney Office (Central NSW OHS Unit) Level 30477 Pitt Street Sydney NSW 2000 Fax: (02) 9280 2770 Newcastle (Regional NSW OHS Unit) Level 6, Suite AT&G Building 45 Hunter St Newcastle 2300 Adelaide Office (SA/NT OHS Unit) Level 2225 Grenfell Street Adelaide SA 5000 Fax: (08) 8124 0413

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Brisbane Office (QLD OHS Unit) Level 8410 Queen Street Brisbane QLD 4000 Fax: (07) 3831 6011 Perth Office (WA OHS Unit) Level 589 Street, Georges Terrace Perth WA 6000 Freedom of Information (FOI) Freedom of Information & Privacy Unit GPO Box 4306, Melbourne 3001 Phone: (03) 9641 1555 Fax: (03) 9641 1474 Email: [email protected] Web: www.foi.vic.gov.au Health Records Act. www.dms.dpc.vic.gov.au www.health.vic.gov.au/healthrecords/ Lifeline Australia - Ph: 13 11 14. 24 Thesiger Court, Deakin ACT 2600 PO Box 173 Deakin ACT 2600 Telephone: (02) 6215 9400 Fax: (02) 6215 9401 Web: www.lifeline.org.au The Law Institute of Victoria's Legal Referral Service (LIV) First 30 minutes with referred lawyer free of charge. Ph: 03 96079550 Web: http://www.legalreferrals.liv.asn.au/ Medical Panels Level 18, 460 Lonsdale Street, GPO Box 2709, Melbourne 3001 Phone: (03) 8256 1555 Toll Free: 1800 061 715 Fax: (03) 8256 1550 Web: http://www.medicalpanels.vic.gov.au/ Medical Practitioners Board. GPO Box 773, Melbourne 3001 Ph: 03 9655 050 Web: http://www.medicalboardvic.org.au/

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Office of Health Services Commissioner 30th Floor, 570 Bourke Street, Melbourne. 3000 Ph: 8601 5200 Toll Free: 1800 136 066 Fax No.: (61 3) 8601 5219 TTY No. 1300 550 275 E-mail: [email protected] Union Assist 54 Victoria St, Carlton South 3053 Phone: 03 9639 6144 Fax: 03 9639 6155 Email: [email protected] Victorian Civil and Administrative Tribunal (VCAT) 55 King Street, Melbourne, Victoria 3000, GPO Box 5408 CC, Melbourne Vic 3001 Ph: (03) 9628 9755 Fax: (03) 9628 9788 General Enquiries: [email protected] Victorian Equal Opportunities Commission (EOC) Level 3, 380 Lonsdale Street, Melbourne VIC 3000 Tel: (03) 9281 7111 or 1800 134 142 (toll free) Fax: (03) 9281 7171 Email: [email protected] TTY: (03) 9281 7110 Complaints & Advice Line: Weekdays: 9am-5pm, Wednesdays 9am-1pm Tel: (03) 9281 7100 TTY: (03) 9281 7110 Email: [email protected] Victorian Ombudsman Level 9, 459 Collins Street (North Tower)Melbourne, 3000 Ph: 03 9613 6222 Toll Free: 1800 806 314 (regional only) TTY: 133 677 or 1300 555 727 Facsimile:9614 0246 Email: [email protected]

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Victorian Trades Hall Council (VTHC) Ground Floor Old Building, Trades Hall,Cnr. Victoria & Lygon Streets, Carlton South, VIC 3053 Ph: 03 9659 3511 Fax: (03) 9663 2127 Email: [email protected] Web: http://www.vthc.org.au/ Return To Work Unit.: Ph: 03 9659 3511 Worksafe Victoria. Ph: 1800 136 90 or 03 96411444 Web: http://www.worksafe.vic.gov.au/ Head Office: Ground Floor 222 Exhibition Street, Melbourne 3000 Phone: (03) 9641 1555 Fax: (03) 9641 1222 Bourke St, Melbourne Level 4628 Melbourne 3000 Phone: (03) 9941 0558 Fax: (03) 9941 0560 Ballarat 333 Gillies St Wendouree VIC 3355 Phone: (03) 5338 4444 Fax: (03) 5338 4499 Bendigo 104 Queen Street Phone: (03) 5443 8866 Fax: (03) 5441 3997 Dandenong Level 3, 33 Princes Highway Phone: (03) 8792 9000 Fax: (03) 8792 9011 Geelong Level 1, 1 Yarra Street (Cnr Brougham & Yarra St) Phone: (03) 5226 1200 Fax: (03) 5221 7861 Mildura 76 Lemon Avenue Phone: (03) 5021 4001 Fax: (03) 5021 4047

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Mulgrave 37 Dunlop Road Phone: (03) 9565 9444 Fax: (03) 9565 9400 Preston 238 - 250 Plenty Road (Cnr Plenty Road & Bell Street) Phone: (03) 9485 4555 Fax: (03) 9485 4501 Shepparton 148 - 150 Welsford Street, Phone: (03) 5831 8260 Fax: (03) 5831 1508 Traralgon Suites 1 & 2, 6 - 8 Grey Street Phone: (03) 5174 8900 Fax: (03) 5174 9086 Wangaratta 24 Reid Street Phone: (03) 5721 8588 Fax: (03) 5721 2740 Warrnambool 76 Henna St Phone (03) 5564 3200 Fax (03) 5564 3210 Worksafe Victoria Complaints Department. 222 Exhibition Street, Melbourne 3000 Email: [email protected] WorkCover Assist. GPO Box 2923 Melbourne 3001 Ph: 9941 0537 Toll Free: 1800 136 089 Fax: 9941 0538 E-mail: [email protected] Workcover Victims Victoria 3 Scott Place, Inverloch, 3996 Ph: 0448 811729 Email: [email protected] Web: workcovervictims.blogspot.com

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Created By Workcover Victims Victoria, 2009

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