If you have a WorkCover claim, and the WorkCover insurer has made a decision that you don’t agree with, it is important that you know that you are allowed to challenge this decision. This can include denial of medical and like treatment, even denial of requested surgery. In this article you will find some useful resources to help speed up the decision-making process, as well as dispute and complaints avenues.
We have recently been contacted by a couple of seriously injured workers regarding their workcover injury permanent impairment claim. Most are confused about the process and many are quite shocked at the low monetary value put on their case/injury. Some don’t know whether they should accept the lump sum, or take their case to conciliation (and/or a medical panel). Perhaps it’s time we summarised the permanent impairment claim process in order for injured workers to better understand the process and what to expect.
The aim of conciliation in Victoria is to resolve disputes and avoid litigation. The injured worker can request conciliation if there is a dispute between the injured worker and the agent (insurer) and/or employer about the injured worker’s claim. What’s more, if your WorkCover insurer fails to respond to a request within 28 days you can also lodge a Conciliation.
In a perfect world, workcover insurers (and their case managers) would exist to help you recover, and to accurately assess and pay damages and costs after a workplace injury. But the truth is, workcover case managers work for the insurance companies they represent, and as a result, they are often more interested in protecting said insurance companies than protecting your best interests, including your recovery. The following Guest post highlights again some common dirty tricks insurance companies use to try to get out of paying for your claim.
The following “Guest Post” submitted by “Mad Chef” highlights that Independent medical exams (IMEs) are among the most disputed components of our troubled workcover system, and offers some tips on how to challenge an IME/insurer’s decision (in VIC).
In Victoria, if your WorkCover insurer makes a decision in writing that you disagree with you can appeal the decision at Conciliation. However, what many injured workers don’t know is that if your WorkCover insurer fails to respond to a request within 28 days, you can also lodge a request for Conciliation!
An injured worker, Sheryl (obviously not her real name) wrote to me recently about her experiences of Conciliation in the Workcover system. Sheryl has been “captured” within the Workcover system in Victoria for over 10 years and has experienced Conciliation at many different stages of her claim. She says that Conciliation is sometimes good and useful in progressing an injured worker’s claims, but it is always damaging to the injured worker’s health as well.
We received an email from an injured worker overnight stating that after he had been sent to an independent medical exam (IME), his workcover insurer called him and cancelled his payments and all expenses on the basis of the IME’s opinion that his injury was not work related. The injured worker’s sollicitor advised him that the next step would be conciliation but the injured worker wonders whether it would be better to go to the Medical Panel to dispute liability….
WorkCover terminates payments – conciliation or medical panel?
The injured worker’s story and question: his own words
Recently I had an IME. Today I get called advising my workcover is getting cancelled payments & all expenses because it was the opinion of the IME that as I have not bee n at work for 6 months that it is now not an injury from work!!
I tore the tendons in both my arms my orthopaedic surgeon wants autologous blood injections & if no success then surgery.
Is it really the opinion of the medical world that if u sit on your butt for 6 months they magically mend & re grow ? because they don’t.
I don’t know what the best step for me is next my solicitor thinks my best bet is conciliation but I was told it would probably be easier to go to the medical board/panel. I really have no idea. Friends tell me one thing my solicitor well his assistant as even tho I ring him only she rings back & my union tell me another thing!!Please any information or advise or somewhere I can get another opinion from would be great I just want them to pay for my treatment & if still unsuccessful surgery but I also need to still be paid I can’t help support my family from thin air
If I do not agree with decisions made by my Insurance Agent, how are disputes with WorkCover resolved?
When you sustain an injury at work, you can make a workcover claim. The workcover insurance company of your employer (e.g Allianz, Xchanging, Gallagher-Bassett, CGU, QBE etc) is then (or shall I say SHOULD then) be responsible to pay for ALL your reasonable and necessary medical and related expenses, as well as your lost wages (if you can’t work).
However, more often than not the workcover insurer will refuse to accept your claim in the first instance, or will often refuse to pay for certain necessary and deemed reasonable medical and related expenses or weekly payments which you and your treating doctors believe you are entitled to.
With proper guidance most disputes with WorkCover should be resolved without a court hearing. As the injured worker’s sollicitor correctly stated, [almost] all disputes are initially referred to the Accident Compensation Conciliation Service, which will attempt to resolve a dispute in an informal manner.In the above case, the dispute will revolve around “liability” for the injury, that is: whether it is work related or whether work was a substantial contributing factor.
It is necessary to lodge an application for conciliation. You have 60 days to lodge a dispute form and ask for Conciliation.
Lawyers are usually not permitted to appear at most conciliation hearings sometimes they can if for example the matter is about liability of injury), but two excellent and free advocacy services are available to assist you.
Union Assist is an advocacy service for union members and WorkCover Assist is a formidable free service able to help all other employees. If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court action. If the Conciliator is able to rule at the conciliation they will issue with a certificate of outcome.
If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court, however court should be a last resort.
How many reports can I obtain from my doctors for conciliation?
As many as you see reasonable, to address your case. So, basically get as many supportive medical reports from your treating doctors (including Physio, Rehab, Psychologist etc) as you possibly can!
Can I seek for my dispute to go to a Medical Panel?
Referring a matter to the Medical Panel is one of the ways in which a dispute with WorkCover can be resolved. A matter can be referred to the Medical Panel by a Conciliator at the Accident Compensation Conciliation Service. (a matter can also be referred to the Panel by a court and by an impairment benefits Officer at the request of a claimant who is disputing their percentage permanent impairment rating.)
A conciliator will usually refer a matter to a Medical Panel if it is a ‘medical question‘ as defined by the WorkCover legislation. Where there is a major factual dispute, this issue may often not be referred to the Medical Panel as it is more difficult for the Panel to decide factual disputes.This is a complex issue. A decision of the Medical Panel is 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.
- To learn more about how Medical Panels work, how they assess you etc, please refer to our article “Medical Panel or Judge?“
- More abut Conciliation: going to a conciliation conference for your work injury
A few days ago workcovervictimsdiary.com received a rather difficult-to-answer email from an injured worker, located in Victoria. The injured worker, who is supposed to attend court to dispute weekly payments, medical expenses and liability for additional injuries, is wondering whether his world is falling apart now that the workcover insurer insists on a Medical Panel opinion at short notice, prior to the scheduled hearing in court…
workcovervictimsdiary.com received an email from an injured worker, who, most unfortunately, sustained a psychiatric injury on his first day at work, when he had been held up at gun point by a robber. It appears that his employer has not been honest and has made the -brand new – employment contract “disappear” in order to avoid liability. A dispute regarding PIAWE was lodged at conciliation and the conciliator was only able to provide a certificate of genuine dispute, allowing the injured worker to take the matter to Court. The injured worker would like to know “what and how long process takes”.
Injured at work on first day of new job -advice needed
The injured worker tells us the following:
“I am a usual once a day visitor to your fabulous website, but I am after some information of my own which hopefully will help ease my mind a little bit…”
“I too am a workcover victim and have been since November, 2011.”
The workplace injury – a nightmare
In November, I started a new job in a gaming venue and on the first day of my job just 45mins into my shift I was held up at gunpoint by an armed, masked robber. Whilst the manager on was the one who had to hand over the demanded cash, I held in my hand the only keys in the whole venue to open up the money til. This meant that I was faced (with the gun) and followed by the armed robber until I handed the keys over to the manger. I did this immediately although it felt like a lifetime.
After the robber left, (no one was physically injured) the hotel was placed in lock down and the police came. The manager informed me I would not be working again that day, and I was also informed that the armed robber was not a ‘regular robber’, implying to me this was a common occurs nice in this hotel.
After being questioned by police & giving a statement I was spoken to the general manager who asked me not to let this deter me. Admiringly (with my fierce adrenalin still pumping) I told him that I wasn’t sure if I could do this job, with the risk of being held up all the time. He also advised me he would pay me for 4 hours for this day and terminate me in the system because I said I wasn’t sure if I could back.
I went to my doctor who referred me to a psychologist and they suggested I make a workcover [the psychology treatments alone cost $150 per visit and obviously without being able to work I would not have the money to pay for this].
I made a workcover claim, and It was granted for the appointments and a PIAWE was calculated at $xx [less than $100]per week, as this was the amount I was paid for working the day I was held up. Now while in my interview with the hotel it was established I would work full time.
The night before my first day of the job I signed my employment contracts, tax file declaration, super forms, nominated bank account forms etc, and handed them to the manager on the morning of the hold up, but did not keep my own copy stupidly.
I got legal advice regarding the calculation of my PIAWE, and he agreed I was entitled to more than $xx per week. He discussed that as I had not been there for 12 months, they should have referred to previous job history regarding a weekly amount.
My solicitor referred this matter to conciliation and I enlisted workcover assist to help.
At conciliation, the insurer informed us that the hotel stated I was only training at their venue so that I could obtain suitable employment elsewhere, as I had no gaming experience. They stated I did not sign any employment contracts or tax file declarations etc. During the conference I called the ATO who confirmed they had received a completed and signed copy of my declaration form, submitted to them by the hotel on the date of my injury. My workcover assist representative also advised them they have already taken liability to my claim by approving the $xx. per week, so the argument regarding not bring employed was not relevant. Although the insurer kept denying I had signed any of these forms.
I am 20 something years old, was in the middle of building a house which has now stopped mid way due to lack of my funding, I’m still mentally not able to work (although trying to pull it together to get to work) and am now down to relying on $900 a month from centrelink and a measly $xx [less than $100] a week from workcover. I have yet been able to speak to my solicitor but would love to get what information I can on court proceedings.
Thank you so much for sharing your story and also for asking those rather difficult-to-answer questions.
It appears to us that liability has, indeed, clearly been established given that you are receiving weekly payments (however pathetic) and that your medical costs are being paid by the insurer.
If we understand your situation, your dispute resolves around whether you are entitled to a greater weekly payment amount (more than what you just earned on that day). This will involve looking closely at your “employment contract” and/or “agreements” and whether or not you were previously working, how much you worked, what you earned etc.
According to the Act (1085) you are a worker:
worker means an individual- (a) who- (i) performs work for an employer; or (ii) agrees with an employer to perform work- at the employer’s direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or (b) who is deemed to be a worker under this Act;
According to the Act the Definition-pre-injury average weekly earnings is as follows:
5A. [popup url=’http://www.austlii.edu.au/au/legis/vic/consol_act/aca1985204/s5a.html’]Definition-pre-injury average weekly earnings[/popup]
(1) In this Act, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means, subject to this section, the sum of-
(a) the average of the worker’s ordinary earnings during the relevant
period (excluding any week during which the worker did not actually
work and was not on paid leave) expressed as a weekly sum; and
(b) the worker’s earnings enhancement (if any) in the relevant enhancement
(2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to–
(a) the average of the worker’s ordinary earnings that the worker could
reasonably have been expected to have earned in that employment, but
for the injury, during the period of 52 weeks after the injury
expressed as a weekly sum; and
(b) the worker’s earnings enhancement (if any) in the relevant enhancement
(3) If a worker-
(a) was not a full time worker immediately before the injury; and
(b) at the time of the injury was seeking full time employment; and
(c) had been predominantly a full time worker during the period of 78
weeks immediately before the injury-
pre-injury average weekly earnings, in relation to that worker, means the sum
(d) the average of the worker’s ordinary earnings while employed during
the period of 78 weeks immediately before the injury (excluding any
week during which the worker did not actually work and was not on paid
leave) (the qualifying period), whether or not the employer is the
same employer as at the time of the injury expressed as a weekly sum;
(e) the worker’s earnings enhancement (if any) in the relevant enhancement
(4) If a worker is a person engaged by an employer to participate as a contestant in a sporting or athletic activity within the meaning of section
16(1) and the injury is not received while the person is-
(a) participating, or training for or preparing to participate, as a
contestant in a sporting or athletic activity; or
(b) travelling between a place of residence and a place where the
activity, training or preparation is held-
any remuneration paid or payable in respect of such participation, training,
preparation or travel is not to be taken into account in calculating the
worker’s pre-injury average weekly earnings.
(5) In relation to a worker of a class referred to in column 2 of an item in Schedule 1A, pre-injury average weekly earnings means the amount determined in
accordance with column 3 of that item, expressed as a weekly sum.
(6) In relation to a worker to whom section 7 or 7A applies, the worker’s pre-injury average weekly earnings must be calculated with reference to the
amounts payable to the worker and deemed to be remuneration under that section, expressed as a weekly sum.
(7) In relation to a worker to whom section 6 or 8 applies, the worker’s pre-injury average weekly earnings must be calculated with reference to the
amounts payable to the contractor and deemed to be remuneration under that section, expressed as a weekly sum.
Procedure in contested claims
If the conciliation service cannot resolve the dispute between the parties by discussion a certificate of Genuine Dispute will be issued and then you can to take the matter to court. Most court proceedings are taken in the Magistrates Court. Some cases are taken to the County Court. Sometimes, although a matter has been referred to a Court, it may still be possible for the “parties” to come to an agreement and “settle a dispute out of court”.
Generally, an application can be made to the court from any decision of the Authority or the self-insurer or from any recommendation or direction of a conciliation officer. Any party to a dispute may refer the dispute for conciliation by a conciliation officer, provided this is done within 60 days of the notice of the decision being served on the worker or claimant.
Legal representation will only be allowed before a conciliation officer if all parties, including the conciliation officer, are in agreement. The conciliation officer can direct the Authority, employer or a self-insurer to pay or continue to pay compensation for up to 12 weeks at any time and/or arrears of up to 24 weeks. Similarly, a conciliation officer can direct payment of medical and like expenses up to $5,000.
If the conciliation officer believes there is a genuine dispute as to whether weekly payments should be made or continue to be made, the officer must advise the claimant of that fact and that an application can be made to the court to determine the matter.
It is compulsory for all weekly payment claims and Table of Maims claims to be referred to conciliation prior to issue in the court (s.49). A certificate must be issued by a conciliation officer prior to issue in the court (s.49), except where proceedings have already been commenced for another dispute between the parties (s.104).
Medical questions must be referred to a medical panel for decision at the request of either party at a conciliation or at court. However, the court may have to resolve any disputed “factual issues” between the parties prior to the referral.
The court and the parties are generally bound by the decision of the medical panel (s.68(4)).
There are also time limits and other procedures in dealing with Table of Maims claims for injuries after 11 November 1997 under the Act (see: ss.104A & 104B), which are designed to restrict such claims being assessed by the court. The court will generally be restricted to determining questions of liability for the claim only. The quantum of the claim will generally be assessed by a medical panel, from which there will be no appeal.
How long does this procedure take
Well, ahum, that’s a big question.You have been issued with a genuine dispute certificate, which means that your matter will be heard at a Court of Law. Either the Magistrate’s or the County Court(Vic). Problem? Many.
There are a host of factors that all contribute to the complexity of this simple question. What is the prior history of the claimant [you]; Who is representing you? How big is the “waiting list” for a hearing? In which court and jurisdiction will the case be filed; will the other party be disputing liability or not; how resilient/nasty are the insurer? Will necessary witnesses be cooperative…etc, etc…
Also, this is presumably only a Hearing regarding your weekly payments.
You need to understand that we are NOT lawyers. However, we believe we are well versed with the laws and the wrought system in general and wish to make the following comments:
- Ensure you “calculate” the amount you were earning in your previous job (if applicable – see act), take 80% (for injuries after April 2010) to calculate a potential new PIAWE and compare this amount with what you are currently receiving from Centrelink and workcover. If it is less… ask your lawyer whether it is worth pursuing as you may be worse off!
- Remember that workcover will cut off weekly payments after 130 weeks where the injured worker has a current capacity for work (even partial capacity). Weekly payments after 130 weeks (in Vic) will only continue where injured workers have no current capacity for work and that situation is likely to continue indefinitely. So… calculate how far in the 130 weeks you are, and if work out if your weekly payments are likely to be terminated (anyway).
- Please remember that Centrelink has a clause you signed and that is that any compensation you may receive (which may include a back pay of weekly payments) is to be paid back to Centrelink!!!
- So, please discuss with your lawyer whether it is worth fighting for weekly payments…and whether or not you are “better off” the way your are, provided you are likely to have a [partial] capacity to work in the near future. Also discuss your “permanent impairment” estimation and whether or not you may have potential for a common law damages claim.
- Also, you will still need to undergo a “permanent impairment assessment” with re to your psychiatric injury. If you manage a whopping 30% psychiatric impairment (almost unheard of) you may be entitled to a lumpsum (which is about $12,000 only – which in your case you may have to hand over to Centrelink!) and/or a common law damages claim, for pain and suffering and also for economic loss – if you can establish negligence of the part of your employer. But if you don’t meet the 30% threshold you get “bugger all”, except your weekly payments and after 130 weeks only IF and WHEN you have a total incapacity for work… For example, a very close very seriously injured friend of ours was violently physically assaulted by a large male at work. She was assessed as suffering only from 5% primary psychiatric injury, notwithstanding that she suffered severe PTSD. She received 25% secondary psychiatric impairment (anxiety, depression, agoraphobia)… yeah… right… The system is wrought and designed in such a way (in Vic) t make it nearly impossible to obtain any form of compensation (lumspum or common law) for psychiatric injuries.
The process of dispute and settlement is very very long tedious and, in most cases, very disheartening.
For example my severely injured friend who was physically assaulted over 7 years ago, and who has lost all function in her entire right arm has not yet been able to get through her permanent impairment assessment because her injury is still deemed “unstable” by the Medical Panel. She has undergone about 8 major reconstructions, some extreme complications and now needs a joint replacement, which she can’t get because of serious anesthetic complications. She is extremely debilitated (last impairment assessment was >30% = serious injury) but because her injury is deemed “unstable” she has been unable to even receive her meager lumpsum, or to even start her common law damages claim (her case involves negligence on the part of the employer). She lives of a pathetic weekly payment (75% of pre average weekly earnings and she was completing a masters degree at the time of her accident, and in fact graduated just a week or two later with first class honours. So she only worked 4 days a week instead of her usual 5 days during that particular year!). Also, she continued work for a number of years after her horrific accident (in between surgeries), re-trained and in fact earned almost double the amount she did then at the time of her injury. Still, this did not count towards her weekly payments, a few years later when she became totally incapacitated for work. She now lives in extreme pain and in utter poverty and with no prospect of ever returning to work. She has been waiting for 7 years already just to get through to the “lump sum” part, to no avail.
So, it could be that your matter will go to court in a few months, but on average we believe it takes about 12 to 18 months. Some cases have taken years…
Thanks again for sharing your story and keep ya chin up. Our best advice is “not to hold our breath” and not to “expect anything” – unfortunately the workers compensation system in Vic (and just about everywhere) is a disgrace, and that is the very reason why we are here! Our site is fueled by rage, dare I say. [we also believe it is better to know the truth than to make believe…and shatter into a thousand pieces… 🙁 🙁 🙁 ]Has anyone else had experience with a genuine dispute certificate and how long did it take for you to get your Hearing?
Any other advice? Tips? Thoughts? Experiences? Please share and don’t forget to give a virtual hug to this injured worker!
- Also see: How ling will my work injury case take?
- Also see : serious injury applications may be heard quicker now
- Also see “overview of the claims process”
- Also see: can I claim compensation for pain and suffering
- Also re-read: compensation and Centrelink !!!!
- Also see online law handbook
Hope this helps a little…