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"the SECRETS & MISTAKES of workers' compensation"
By Harry Evans
Workers' Compensation Lawyer
Secret 1: when the aggravation of a pre-existing condition or a secondary injury is covered
Most workers’ compensation claims that are disputed by insurers are those where a worker has a pre-existing condition such as degenerative disease in their back or they have had a previous surgery to their knee or shoulder, for example. The insurer tries to argue that the worker’s employment had nothing to do with the worker’s current incapacity or need for surgery or there is insufficient evidence to prove that a work injury has occurred. This often occurs when the worker has had a hard day of work, their body aches and they go home or if they are FIFO, they go on R&R. The next morning, they wake up in excruciating pain and they can’t move. Or a worker twists or trips at work and then all of a sudden they require a major surgery that seems out of proportion to the work activity that the worker was doing. For example, a worker turns quickly because she is rushing to meet a deadline, she twists her knee and then she needs a total knee replacement. One of the most important principles in workers’ compensation is that an employer and their insurer must take the worker as they find him or her.If a worker has a pre-existing disease and that disease is aggravated by the workplace and the workplace contributed to a significant degree, the insurer must pay for the worker’s time off work and medical expenses. “Significant” means “not insignificant”, “not negligible”, “not fanciful” or “not far-fetched”. In percentage terms, “significant” could be as low as 5-10%, although the lower the percentage, the harder it is to prove. However, an aggravation of a pre-existing disease can also be treated as a “personal injury by accident”. This means that a worker only has to prove that he or she had a sudden or identifiable change in physiology, which is often detected by an x-ray or MRI, and that change happened while they were working.
Sometimes after liability is accepted for an injury, a worker can develop a secondary injury from overcompensating. For example, liability is accepted for a right shoulder injury, the worker has surgery and then their right arm is in a sling for six weeks. Then they overuse their left shoulder and then that shoulder needs surgery as well. A lot of insurers will dispute liability for secondary injuries, but they are covered, provided that a doctor explains how the secondary injury is related to the primary injury.
Or a worker develops secondary depression from being in pain and off work for months or even years. The physical injury completely heals, but the secondary depression is causing total incapacity. Most insurers will refuse to pay weekly payments for the secondary depression, but it is covered. These are often very technical legal arguments, so make sure you have an experienced lawyer fighting for your rights.
Sometimes after liability is accepted for an injury, a worker can develop a secondary injury from overcompensating. For example, liability is accepted for a right shoulder injury, the worker has surgery and then their right arm is in a sling for six weeks. Then they overuse their left shoulder and then that shoulder needs surgery as well. A lot of insurers will dispute liability for secondary injuries, but they are covered, provided that a doctor explains how the secondary injury is related to the primary injury.
Or a worker develops secondary depression from being in pain and off work for months or even years. The physical injury completely heals, but the secondary depression is causing total incapacity. Most insurers will refuse to pay weekly payments for the secondary depression, but it is covered. These are often very technical legal arguments, so make sure you have an experienced lawyer fighting for your rights.
Secret 2: penalty rates, allowances and overtime
For the first 26 weeks of incapacity, an insurer will pay you the average of your base rate, overtime, penalty rates and allowances. From the 27th week onwards, they try to only pay you your base rate. For FIFO workers, miners and truckies, overtime, penalty rates and allowances make up a big part of their wages. I once had a client whose weekly wage was around $2,000 per week, but after 13 weeks (under the old 1981 legislation), the insurer stepped his wages down to his base rate, which was around $1,000 per week. I made a WorkCover application and the worker was paid thousands of dollars in back pay as well as his legal costs. Make sure you have an experienced lawyer who knows how to calculate your rate of pay properly and make a WorkCover application if the insurer refuses to pay your entitlements.
secret 3: when your surgery is covered
Often, if a worker has had surgery, on their knee or neck, for example, some time in past, the insurer will dispute the worker’s current need for surgery, blaming a pre-existing condition. Then because the worker needs surgery now, the insurer will also threaten to stop the worker’s wages and pressure the worker into taking a low settlement offer. An insurer can avoid paying for a surgery if in the past the worker had a surgery and the surgeon at that time predicted with reasonable precision that a worker would need another surgery in the future. In most workers’ situations, this is impossible for the insurer to prove, but the insurer will still try to convince a worker that they can prove it. Make sure you have an experienced lawyer who understands medical evidence.
Secret 4: bullying-stress claims usually have nothing to do with who is at fault
Workers’ compensation is a no-fault system, which means that the employer does not have to be at fault. This is different to common law claims where a worker must prove that the employer was at fault. This is often overlooked when it comes to stress claims, especially workplace bullying claims. If a worker suffers a stress injury such as depression, anxiety, acute stress reaction or adjustment disorder, the worker does not need to prove that a boss or co-worker bullied them, although that would be useful evidence. The worker only has to prove that: An event happened, such as a boss or co-worker saying something or writing something to the worker. The worker had a psychological response to the event that has been diagnosed by a doctor. The psychological response results in the worker requiring time off work or the need for medical treatment. The event was not reasonable performance review, disciplinary action, dismissal, demotion, transfer, retrenchment or redeployment. This is a greatly simplified explanation of proving bullying-stress claims and there are more legal technicalities, but that is the gist of it. If a worker is being disciplined or dismissed and they suffer a stress injury, they have to prove that the discipline or dismissal was harsh and unreasonable, but this is usually a matter of common sense. Most bullying-stress claims are won or lost because what is contained in GP consultations notes and the emails and text messages that the worker sends to their employer.
Secret 5: Insurers will make 5 to 7 settlement offers to LAWYERS
If the insurer wants to pay you a lump sum to finalise your claim, the insurer will only make one settlement offer TO YOU. However, if you have a lawyer, the insurer will often make 5 to 7 settlement offers, sometimes more, sometimes less, and the final offer will often be almost twice as much as the first offer.
Mistake 1: Not claiming annual leave
Some employers lead a worker to believe that if the worker is receiving workers’ compensation payments for time off work, but the worker wants to go on annual leave, that the worker has to stop compensation payments and instead receive annual leave payments while they go on holiday. This is not true. When an injured worker goes on holiday, they may receive workers’ compensation payments and annual leave payments at the same time. Often, when a workers’ compensation claim is pended by an insurer, a worker will receive sick leave and then annual leave. When the claim is accepted, some workers don’t get their sick leave and annual leave reinstated and could lose thousands of dollars. Make sure you get an experienced lawyer who knows about your rights to annual leave.
Mistake 2: Not claiming travel expenses
A lot of workers don’t claim their travel expenses, which is currently $0.59 per km. If a worker makes a 100 km round trip to see a doctor, chiro, physio, psychologist or rehab provider, they can claim $0.59 per km x 100 km = $59 from the insurer. Most injured workers travel at least 1,000 km per year, which is $590 that can be claimed from the insurer. Workers can also claim parking expenses, flights, taxi fares, train fares, bus fares, hotel expenses and meals and also expenses for a support person if those expenses are necessary to see a doctor. Make sure you get an experienced lawyer who knows about your rights to travelling expenses.
Mistake 3: Not getting another medical opinion
In the cases where the insurer has accepted liability and the worker has been on workers’ compensation for a year or so, the insurer will send the worker to one of their doctors for a permanent impairment assessment. Some of those doctors will not use a special measuring device called a goniometer to measure the range of motion in shoulders and elbows and will instead estimate the range of motion with their eyes and also place a worker’s arm in a position that is beyond their pain threshold. Some of these doctors will not take into account the radiculopathy down the back of a worker’s legs or a worker’s inability to put on their socks when assessing the permanent impairment of a back injury. This means that the insurer’s doctor is understating the degree of permanent whole of person impairment (WPI) of a worker. For example, if an insurer’s doctor says that a worker’s WPI in relation to their back injury is 23% (and the employer was negligent in causing the injury), the worker’s claim would be capped at $573,766 as the WPI is under 25%. However, if the worker’s WPI is actually 25% because of radiculopathy down the back of the worker’s legs (which the insurer’s doctor chose to ignore) there would be no cap and the worker would be able to claim loss of wages until retirement, which could be over $1,000,000. Some of the insurer’s doctors issue a FINAL certificate and say that a worker is fit for their pre-injury duties, when they are not. The insurer then uses that as a justification to stop income compensation, but then a couple of months later, the employer terminates the worker’s employment because the worker can’t perform their pre-injury duties. The worker is left with no income compensation or wages. As soon as you make a workers’ compensation claim, you should consult an experienced lawyer who can help you find the right GP, surgeon, workplace rehabilitation provider and pain specialist. If you don’t, the insurer will choose their own experts and you could lose (hundreds of) thousands of dollars in compensation.
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