Being on workcover is a nightmare! Dealing with your injury, the complex workcover system, your employer, the WorkCover agent, rehabilitation agents, doctors and even lawyers can be mind boggling and very stressful! Here we share a few tips that can help you survive WorkCover!
Dealing with your injury- especially a permanent injury- and its after-effects can be extremely stressful. Negotiating your way around a very complex WorkCover system, dealing with your employer, the WorkCover agent, rehabilitation agents, doctors, so-called “independent medical examiners” and even lawyers can be mind-boggling and extremely stressful! Below are a few tips and tricks that can help you survive the WorkCover nightmare!
1. Focus on your health and recovery
Your highest priority should always be your health and to maximise your physical and/or psychological recovery.WorkCover must pay for all reasonable treatment costs. We strongly believe that the most important issue is to ensure that you are getting the best quality medical treatment possible.
2. Have a thorough understanding of your WorkCover entitlements
When you are seriously injured, you will have to make many important decisions about your future. To make the right decisions it will be critical to understanding as much as you possibly can about the structure of WorkCover benefits, for example, how they interact with your other employment entitlements, and what all your entitlements really are.
WorkCover is an extremely complex system! The Act of Parliament which governs WorkCover alone is several hundred pages long and quite complicated. Trying to understand just what WorkCover does and does not provide is really important. There are many resources available to help you with this task.
The most detailed information for Victorian injured workers, apart from the Act itself, is on the WorkSafe website which contains a very detailed publication called the ‘Online Claims Manual‘. This contains detailed instructions from WorkCover to its agents on how to handle claims. It also includes very detailed information about the calculation and payment of WorkCover benefits. Remember this information is written from WorkCover’s perspective only. Nonetheless, this can be a useful resource for people who want detailed information.
For all other states, please refer to our WorkCover Law page for links to the relevant legislation and resources.
3. Try to deal as best you can with WorkCover
Dealing with WorkCover and -especially- your case manager can be extremely stressful. Following a few simple guidelines can make dealing with WorkCover, and your case manager (and rehab providers) a tad easier.
- The most important thing is that you keep good, written records. For example, if you want to claim travel expenses you need to submit details of all your trips to and from doctors, incl train, bus, tram, taxi and parking receipts. If there is an argument about your weekly payments because WorkCover feels you are not looking for work, keeping a record of all your attempts to obtain work can put you in a far better position.
- We advise all injured workers to only communicate/correspond in writing, either via email or via letter/fax. You do have the right to refuse telephone contact and you also have the right to request that all correspondence/communications go through your legal representative, one of your doctors or an advocate.
- It’s also very important that you keep a copy of all your documents. For example, when you receive a certificate of incapacity, the original should be provided to your employer but ensure you make a copy for your own records.
- Ask under the Freedom of Information Act or the Workers Compensation Act, for a copy of all your medical reports, including independent medical examination reports.
- When submitting your medical certificates ensure that you complete the section on the back of the certificate about your work activities. If you don’t it will delay your payments and the form will be sent back to you. It may also be useful to try and ensure that your certificates expire on a Saturday or Sunday to make it easier for WorkCover or your employer to calculate your weekly entitlement. This enables weekly benefits to be paid in whole weeks.
- Sometimes (well dare we say “often’) the decisions that a case manager makes can be extremely frustrating. Losing your cool can backfire as you will run the risk of being typecast as difficult or as suffering from a psychological problem! Whilst you are entitled to acquire an explanation of a case manager’s decision and to discuss the decision freely with them, but it is important to ‘keep your cool’ with the case manager. (also see things that annoy the sh*t out of case managers)
- If you don’t agree with a decision from your case manager, and it appears that they’re not adhering to the “guidelines” you can ask them to identify their superior (aka Team Leader) and request to discuss the matter with them. If you still disagree with the decision, you should dispute the decision by referring the matter to conciliation. Many WorkCover decisions are overturned at conciliation. Note that you will need a “rejection letter” from your insurer regarding a particular issue (i.e. denial home help, ceasing physio, denial surgery, denial transport etc).
- If you believe that your claim has been seriously mishandled, of course, you can complain to the State Ombudsman. This can be a major step so it is important to ensure that your attempts to resolve the issue through other channels have failed (i.e. formal complaint to the insurer, formal complaint to WorkSafe etc).
4. Dealing with rehab and return to work issues
The WorkCover system is – in theory- strongly committed to rehabilitating injured workers and providing assistance to enable a return to work. In fact, you will soon notice that your case manager wants only one thing: to get you back to work at any cost!
Rehabilitation, however, means different things to different parties. Some employers are genuinely committed to rehabilitation and a proper return to work, however many (if not most) others, have no interest in returning an injured worker to meaningful work and will provide only minimal assistance in order to keep WorkCover happy (and to avoid penalties such as premium rises). These employers will often use phrases like “we don’t have light duties” or “don’t come back without a full clearance certificate”.
Many employers also make only meaningless or demeaning work available. Sadly, in these cases, a return to work can be like a ‘guerilla warfare’ which is, ultimately, aimed at sacking the injured worker.
Chances are you have seen how your employer has treated other people who have been injured at work.
Following some simple tips may make the extraordinarily difficult situation of returning to work, a little easier:
- It is very important to try and understand as soon as possible whether or not you will have any capacity for work in the future. In the early stages of your injury, it can be very difficult to work out what your long-term capacity for work is going to be. It can also be difficult to assess what commitment (if any) your employer will make to assist any return to work. It’s important to discuss this with your treating doctors. Questions to ask include: Do you have the capacity to enable you to perform your current work? If you can’t perform your current work – what kind of restrictions will there be in the work you do? If you have to change the nature of your work- what type of retraining will you need? Don’t rush into making any decisions about your future – you need to have an answer to all those questions first. For example, there’s no point changing careers or requesting re-training if you are likely to completely recover from your injury. Also, for example, if you had a desk job (i.e. accountant) and you have a serious leg injury, there should be no need to retrain as you may still be able to undertake desk work with a leg injury; however if you are a nurse and you have broken your shoulder in a permanent manner, you will need to consider retraining as hands-on work in a ward will no longer be possible for you.
- WorkCover will become extremely “proactive” (read harassing) about returning an injured worker to work. The case manager will -very quickly- send you a list of three occupational rehabilitation providers in order for you to choose one to “assist” you in returning to work. This contact can often seem premature and somewhat pushy in the stages of recovery. This might be based solely on the uneducated views of the case manager or on the assessment of WorkCover’s doctors (aka IMEs) who may have a less sympathetic view or may be frankly biased about the effect of the injury on you. If it is likely, or even possible, that you will have some capacity for work in the future it can be very important to choose a rehabilitation provider carefully and communicate them your willingness to look at return to work options when your doctor considers it appropriate.
- It is extremely important never to refuse an offer of rehabilitation or alternative employment (suitable duties) outright, as this could be used against you to terminate your WorkCover benefits at a later date. The best approach is to indicate your willingness to consider a return to work plan or proposal after a discussion with your treating doctors about the issue.
- Often, a rehabilitation provider will delay any consideration of looking at alternative employments or training courses as the focus of the rehabilitation consultant is usually and solely on returning you to your former workplace. This may be inappropriate or a short-term fix! It can, therefore, be very useful for you to identify the jobs you think you may be suitable for, and what training courses may be necessary to become skilled for them. Having done this, you can then discuss these options with your rehabilitation provider. You can formally request, preferably in writing, that they approve specific training courses. Remember, WorkCover’s response to training courses is likely to be affected by the length and cost of any course. The longer or more expensive the course – the less likely they are to approve it. If you were to identify a reasonable course that you wish to undertake which is then rejected by WorkCover, you are fully entitled to refer the matter to conciliation or resolution of the dispute.
- If you do return to work make sure that your progress is properly monitored and assessed. If you return to work and are having continued difficulties you should attend your doctor and explain what those difficulties are. This is very important because the doctor’s notes will record the fact that you are having difficulty returning to work, which will make it easier to obtain a weekly payment if you are again forced to stop work. If you have difficulties in returning to work either because the return to work program is not appropriate or because your employer is not adhering to the return to work program, you should contact your rehabilitation provider and relay your concerns to them about the situation. Remember to keep a note about the details of your employer’s failure to adhere to the return to work plan and your discussions with the rehabilitation provider. If necessary, you should ask the rehabilitation provider to contact your doctor or to attend at your workplace to meet with you and your employer to discuss the matter.
- If your employer is refusing to provide appropriate work, failing to adhere to a return to work program or in some other way sabotaging your return to work, you can report the employer to a return to work Inspector at WorkSafe. WorkSafe can, in some circumstances, prosecute an employer. However, before prosecuting an employer, WorkSafe will attempt to negotiate a resolution of the situation.
- Again, keep a copy of all documents, including emails and try to keep all communications in writing (email is OK). If you had a “meeting”, always follow up in writing (i.e. email) and confirm what was said and decided at that meeting.
5. Get legal advice/representation sooner rather than later
When you suffer a permanent work injury, it is likely to have many financial and life-changing effects. It is important that you obtain legal advice so that you can be prepared for some of the issues that may emerge as your condition progresses. If you obtain legal advice early, you will be better prepared to deal with many of the challenges that can emerge in the course of your claim. Also, your insurer and case manager (and employer) are likely to treat you with a little more respect if you are legally represented.
Almost all injury lawyers offer an initial free consultation – use it. Most operate on a no win no fee basis.
Make sure you select a reputable lawyer/law firm specialised in personal injuries.
If you don’t know where to start we suggest you give Zaparas Lawyers a go. They’re the only law firm that we support and fully trust, because they really do care, and are not $ sharks! You can always switch over to them from another lawyer or law firm!
Survival Guide for injured workers
Here is what I call my “Survival Guide” to workcover because injured workers who are placed on workers’ compensation without the benefit of experienced lawyers on their side are left to rely upon human resource managers, workers’ compensation insurance case managers and claims adjusters for advice and information regarding their workers’ compensation rights. All too often, injured workers mistakenly believe that workers’ compensation insurance is their insurance. Nothing could be further from the truth! Rather, workers’ compensation insurance is insurance for the employer, and an injured worker is considered a “claimant.” In fact, Australian laws are written in such a way that the workers’ compensation system has become a system of the injured worker versus the insurance company (and the employer)! The average injured worker placed on workers’ compensation has no understanding of the system and is left to trust the workers’ compensation insurance company (and their employer) to protect his/her rights. Aworkcovervictimsdiary believes that such trust is misplaced. The Survival Guide to WorkCover has been prepared with the hope that it would help injured workers identify the red flags!
Survival Guide to Workcover
1. Be sure your injury description is correct
When a worker is injured on the job, the law requires the workers’ compensation insurance companies to issue a Notice of Compensation Payable/ notice of injury/accepted liability, if liability is accepted for the injury,which represents the employer’s and insurer’s legal recognition of a work injury. It contains a description of the injury and sets forth the employee’s average weekly wage. The Notice of Compensation is prepared by the workers’ compensation insurance company, and often the description of the employee’s injury is not accurate. It is very common for the insurance company to describe the injury as less severe than it really is. For example, an employee might injure his/her wrist on the job and go to the hospital’s emergency room for treatment. X-rays reveal that the wrist is fractured, but when the injured worker receives the Notice, the injury is described as a wrist sprain. Many employees do not even look at the injury description when they receive the document. However, an inaccurate injury description almost always favours the insurance company and hurts the injured worker. The Notice should have an accurate injury description. If the nature of the injury has changed, for instance, if a low back sprain is later determined to be a herniated lumbar disc after an MRI, the Notice should be changed to reflect the diagnosis of the more serious condition.
In my case, 7 years after the incident and 7 major surgeries later, the Insurance Company I deal with still writes “bruised [limb]! That the [limb] is fractured and broken beyond repair, qualifies as a ‘serious injury’, and even whilst the insurance company issued me (later) with a notice of assessment (for impairment) of 26%, they continue to just write that I have a “bruised [limb]. Even when they send me to an IME or a Medical Panel, their diagnosis of just a “bruised [limb]” remains unchanged…. yeah, right… (In the end, I was assessed with 43% WPI with no remunerative work capacity for the future because of said ‘bruised shoulder’.)If you receive a Notice of injury and the diagnosis of your injury is not correct, you should contact your lawyer.
2. Be sure your wage rate is accurate
The Notice of Compensation Payable referred to in Survival Tip #1 also includes the injured worker’s pre-injury average weekly earnings (PIAWE). The workers’ compensation insurance company calculates the average weekly wage by using one of several possible formulas, which are selected depending on the injured worker’s individual circumstances. The average weekly wage should include salary and/or hourly wages, overtime, and bonuses. It may be adjusted for seasonal employment and should include income from other employment.
Mistakes in calculating the average weekly wage are often made.
Failure to review the calculations may result in an underpayment to an injured worker that goes undiscovered.
Always ask to see how the WorkCover insurance company calculated your PIAWE and double-check it to make sure it is correct.
3. Always document receipt of late payments (whether in your bank account or via cheque)
Late payments are a common complaint of workers receiving workers’ compensation benefits.
The law requires workers’ compensation insurance companies issue wage loss benefit cheques/payments in the same pay period that the injured worker would have received his/her regular pay. For example, if you were paid weekly before the injury, you should receive your workers’ compensation payment weekly.
- Make a copy of the cheque/payment when it is received.
- If you receive cheques, attach the copy of the cheque and any cheque stub that accompanied the cheque to the envelope in which the check came.
- Write the date that you received the cheque on the envelope or copy your bank statement(s)
Your lawyer can then use this documentary evidence to prove that the workers’ compensation insurance company is not sending the cheques/payments in a timely or consistent manner.
After all the years that I have been receiving workcover payments (initially on and off as I was still working in between surgeries until about 2 years ago, when I had to stop working), it still surprises me how often my employer/workcover “forgets” to pay me, and what amazes me most is that payment amounts will occasionally vary!!!!
Regardless of whether your cheques/payments are late, we recommend that all injured workers keep a log of when they receive the cheque/payment and what period they covered.
4.Know the importance of an independent medical examination (IME)
An Independent Medical Examination (IME) is a tool used by the workers’ compensation insurance company to have its own “so-called independent doctor” of choice review the physical condition of an injured worker. The Independent Medical Examiner, a doctor chosen and paid by the workers’ compensation insurance company, will review an injured worker’s medical records and examine the injured worker. The IME doctor will then issue a written report to the workers’ compensation insurance company. A copy of that written report is usually not provided to the injured worker, but you are entitled to a copy under the ACA or the Freedom of Information Act (make sure you obtain a copy).
An IME costs the workers’ compensation insurance company money. Therefore, it is usually only requested when the insurance company feels it may disagree with the injured worker’s treating doctor, and wants to interfere with that treatment or refuse to pay for it. The other reason that an insurance company will request an IME is that it disagrees with the treating doctor’s restrictions on the injured worker. In those instances, the workcover insurance company requests an IME to force an injured worker to do more work than is recommended by his/her treating physician. In either event, AN IME ALWAYS SPELLS TROUBLE!
5. Know who’s side Workcover, including your case manager is on
Injured workers have the right to choose their own doctors and specialists.
Workers’ compensation law provides the injured worker with the right to control his or her own medical treatment.
Workcover insurance companies must also provide you with a list of at least three (3) Occupational Rehabilitation Service providers. Don’t just accept who they are sending you to!
The case manager will report to the insurance company on the treating doctor’s recommendations and even on your own “feedback” and will often guide an injured worker to other doctors or specialists. The injured worker should be aware of the fact that while everyone, including the WorkCover insurance company, has an interest in seeing that the injured worker gets better (i.e. returns to work), there is a great advantage to the workers’ compensation insurance company if it is able to control medical treatment. You do not have to talk to the case manager. Don’t provide any “feedback” on treatment plans from your doctor etc.
6. The workers’ compensation insurance company is required to reimburse the injured worker for travel expenses.
- Kilometres (petrol) if you use your own car
- Parking fees (keep receipts or take a picture of the digital parking meter if no receipts are given)
- Travel costs to any treatment/appointment needed for your injury: this can be physio, psychology, GP, specialist, massage etc
- Medical Panel
- Accident Compensation Conciliation Service (ACCS) travel cost must also be paid
7. Be careful of Vocational Assessment and the identification of “suitable” jobs
A vocational expert hired by the insurance company compiles a Labour Market Report with “identified suitable jobs”, and the insurance company’s lawyers may introduce that report at a hearing before a workers’ compensation judge and request that an injured worker’s weekly wage loss benefits be reduced or stopped altogether.
They will go out of their way to find you the most outrageous ‘suitable’ or ‘light duties’, often without consulting you or taking your restrictions into account.
I had been employed for almost 10 years with the same employer where I sustained my severe injury. My original employment was terminated within weeks of my injury as medical reports proved that I would never be able to work in that “field” again. Suitable duties were allocated – hey your employer has a duty to care for you for 52 weeks (1 year) and cannot sack you during that period. The so-called suitable duties were physically worse/harder than my original job! So I looked for another job within the organisation by myself, which was more sedentary and desk-based. (BTW I retrained as well via internal courses and 1 TAFE course). I obtained in total 3 independent contracts (jobs) during a period of 5 years AFTER the accident and AFTER my original employment had been terminated. I was working as an X Manager in my last full-time job and had independently obtained this position by legal means (interview, selection process etc). I had made it very clear at the time of my interview that I was ‘disabled’ and that I required reasonable ergonomic tools in the workplace as well as some flexibility (good days/very bad days). All was accepted and I was still deemed the best candidate for the job. About 6 months down the track it became unfortunately clear that I would require further major surgery. The injury had again deteriorated, again because my employer had still not put in place the medically requested, reasonable ergonomic tools to assist me (we’re talking about simple things such as a chair with support, docking station for the laptop, alternative mouse, under-desk keyboard drawer etc). My employer was well aware of the type of surgery I was to undergo and knew that I would most likely lose more function (in my limb) in exchange for pain control. It was a salvage operation. They also knew that the ergonomic tools would still be necessary, even more so. Guess what, after the last surgery, and whilst I obtained a legal certificate of capacity from my surgeon allowing me to undertake the same duties as before the surgery 6 weeks after the surgery, my employer sacked me – just like that. It was obviously fine for me to work full time up to the day before the last surgery in a very bad physical state and with no ergonomic support, but after the surgery, I was ‘not good enough’ anymore I suppose.
Within DAYS of my sacking, my case manager started calling me (up to 10 times a day) stating that I could and would work and that she would send me to a vocational. Needless to say that I questioned the need for a Vocational assessment, given that I had been working as a very successful X manager for several years. So why the need to find a new vocation?
Anyway, it turns out that, setting aside their desperation to get me a job (of which by the way several positions were open in the same field), they were looking at making me work in “identified labour market jobs”. I will spare you the details but whilst I have been working my whole life in health care, they felt that I could work as a “ministerial assistant” and – take a deep breath- that “I had experience in that area: as in preparing briefing documents for a minister” – yeah, right… Another job that I was deemed capable of was to work as an X clerk! I mean I get sacked from an executive management position in the health care system (for which I am well qualified), and which involved desk work (report writing, analysis, coaching and training, project work etc), but now I need to work as an X clerk, which involves running around all day, photocopying documents, filling water jugs, making coffee, answering calls… yeah right… Not only is this clerk job so insulting, but – the important part- the job is hands-on and here I am sacked by my own employer because “I am disabled” and “can’t do a desk job”. Please explain!!!! If you have been injured at work and it appears that you may be unable to return to your pre-injury job, you should contact your lawyer immediately.
If you are already receiving workers’ compensation benefits, you should be aware of the fact that your medical treatment can be subject to an ‘Victoria/whatever state WorkCover Authority Clinical panel review’. This is a process in which the insurance company challenges whether your medical treatment is reasonable and necessary, not whether the treatment is related to the injury. Once the workcover insurance company receives the medical provider’s bills/accounts and notes, it can file for this Clinical Panel review, which allows the insurance company to avoid paying for the treatment. When the insurance company does this, supposedly, a medical provider with the same specialty as your medical provider reviews the treatment.
You should know that you cannot be held responsible for paying the medical bill and you can take an appeal of that panel review’s decision. In fact, this clinical panel review is not only available to the insurance company—you, too, can file for a review if necessary. If you receive a Clinical Panel Review Determination or think the insurance company is refusing to pay for treatment recommended by your doctor, call your lawyer or the ACCS to find out your rights.
Usually, you can appeal the decision at the ACCS, and just provide your own “evidence” from your supporting treaters that you do need the treatment.
In my case, Workcover has attempted to cease my psychology treatments several times and recently also decided that I did not need physiotherapy. Between brackets, I am to undergo an 8th major operation to a joint (limb), but hey I don’t need physiotherapy for that, do I? Get a grip!
Often a WorkCover insurance company will not pay for a medical bill because it believes the treatment is not related to the work injury. You should not let these bills sit around even though you know they are related to the work injury. By not dealing with the issue, the bill could be reported to a collection agency and the doctor could even refuse to treat you.
For example, I was told by a fellow workcover victim that workcover refuses to pay for Eye drops and eye ointment. These eye treatments were prescribed by the injured person’s specialist to alleviate eye issues (dry eyes etc) that came about as a known side effect from an anti-depressant the person needs to take.
In another case, workcover refused to pay for an ultrasound of an injured person’s leg stating that “the leg injury had nothing to do with the original shoulder injury”. Well, that person had undergone massive surgery whereby the hamstrings of the injured person’s leg were harvested and transplanted into the person’s shoulder for reconstruction. jeez,….
9. Prepare for your Impairment Rating Assessment
Impairment Rating Assessments are a tool used by the workers’ compensation insurance company to assess your total body impairment and subsequent lump sum payout. So it is about how much the workers’ compensation insurance company will have to pay to the injured worker. The workers’ compensation insurance company gets to start the Impairment Rating process and controls the records which are reviewed by their chosen doctor.
Needless to say that the “independent impairment assessors/doctors” are not only chosen by Workcover, but they also happen to be paid for by workcover. Workcover insurance companies will go at great length to have your impairment assessed by the most dishonest, incompetent “assessor(s)” – remember its about MONEY.
In my case, workcover sent me to an “occupational physician” to assess a highly complex orthopedic injury. Not only was he rude, but he was very good a covering up certain injuries or the severity of injuries. What does an occupational physician know about a novel total reverse shoulder prosthetic which is misaligned, dislocating, infected and has broken screws?
The law also provides a way to challenge an Impairment Rating Assessment. Usually, the way to appeal an impairment assessment is via the Medical Panel. You should contact your lawyer.
Never ever sign a Notice of Assessment without seeking legal advice!
10. Offers of settlement for a lumpsum
Needless to say, there is typically a very large difference of opinion as to what a workers’ compensation insurance company wants to pay and what an injured worker should accept. The amount offered relates to total body impairment as assessed by their doctor of choice. It is important to remember that the workers’ compensation insurance company cannot make an injured worker accept a settlement. (see above) Many times, a settlement, even when it provides for a large payment, is not in the injured worker’s favour. Don’t get fooled by the little bold clause stating “that if you accept the offer the money will be in your account within 14 days”, no matter how poor you are.
Surviving WorkCover: some more tips
Here are a few more handy tips and tricks on how to survive workcover, mainly directed at long-term and/or permanently injured ‘workers’.If you suffer a permanent work injury or an injury which has long-term effects, it can have a major effect on your quality of life. Dealing with your injury and its effects can be extremely stressful. Negotiating your way around a very complex WorkCover system, dealing with your employer, the WorkCover agent, rehabilitation agents, doctors, “independent” medical examiners and, at times even lawyers can be mind-boggling!
1. Maximise your recovery
Your highest priority should be to maximise the extent of your physical and psychological recovery. And for that high-quality medical treatment is essential! WorkCover must pay for all reasonable treatment costs. This includes psychology treatment/counselling! (Just ask your GP for a referral and WorkCover must pay for the reasonable cost).The most critical issue is to make sure that you are getting the best quality medical treatment possible. So do your research first and seek out a reputable doctor/specialist/physio/psychologist/psychiatrist that is willing to take on WorkCover patients (although quite a few refuse to treat workcover patients, this is, unfortunately, an ethical matter which we cannot influence; although saying that, I have personally managed to be accepted by two highly reputable specialist (1 pain specialist and 1 orthopedic specialist) who do not normally take workcover patients, by writing directly to them and making a case).
Dealing with busy medical practitioners and specialists can be very difficult but it is important that you are able to discuss carefully all the treatment options that might be available to you and the various advantages of each option. If you feel that you do not get the opportunity to discuss these matters freely with your doctor there are a few things you can try to do.
- When you book an appointment specifically ask the doctor’s receptionist for a long consultation so you will have an opportunity to discuss these matters. WorkCover will cover the extra cost of the consultation for this purpose. Also, from experience, to avoid grumpiness from my specialist surgeon, I always ensure I am booked in as the last patient of the day (in case workcover paperwork is involved – I mean, you know what it’s like…)
- It often helps to make a note (write down) of all your questions before your appointment so you don’t forget what you had to ask/discuss. Also please don’t feel ashamed in bringing out the list of questions at the consultation and working through them. It will actually save time (as you will not be distracted or side-tracked).
- If you are consulting specialists and they recommend serious treatment such as surgery, discuss this with your treating GP and discuss the possibility of obtaining a second opinion before you commit to surgery. You are fully entitled to obtain a second opinion under WorkCover. Also, remember that you have the right to obtain medical treatment from the medical practitioner of your choice and that you can change to another treater whenever you like too.
Ensure that your doctor is prepared to deal with WorkCover as this can be very important in making sure your entitlements continue to be paid smoothly. If you are a long-term patient of the practice this is usually no problem.
Some doctor’s surgeries have notices which make clear that they do not deal with WorkCover.
Other doctors may communicate some ‘irritation’ or ‘grumpiness’, to you about having to deal with WorkCover. This is because payment of medical accounts by WorkCover can sometimes be slow. They also have to spend a lot of time with you or time preparing certificates and writing reports for WorkCover, for which they usually are not paid. So, being irritated with having to deal with WorkCover is perfectly understandable!
Some doctors also become worried about the (slight) possibility that they may be called to give evidence in your WorkCover case. If you think that your doctor is showing too much ‘irritation’ or frustration, try to have a frank chat about workcover and explain for example what you have to deal with on a daily basis, and ask the doctor if there is anything you can do to help (i.e. by booking long appointments, by being the last patient, perhaps by having an additional phone consultation, perhaps paying upfront (if you can) and claiming back…). But don’t sever your relationship with the doctor, unless you can find an equally reputable doctor who is willing to take workcover.
2. Really understand your WorkCover entitlements
You certainly will have to make many very important decisions about your future. In order to make the right decisions, it will be critical to understanding as much as you possible about the structure of WorkCover benefits, and even how they interact with your other employment entitlements and your superannuation.
WorkCover is an extremely complex system! The Act of Parliament which governs WorkCover alone is several hundred pages long! Trying to understand just what WorkCover does and does not provide is really important. Fortunately, there are many good and free resources available to help you understand the system.
A good starting point is this blog/ website which contains frequently asked questions about WorkCover entitlements, and a whole knowledge base section where you can find Acts and regulations, relevant links, etc. Obviously, and especially if your injury is likely to have permanent effects, you will need to talk to a lawyer who is an expert in the area. It is never too soon to have a free confidential discussion – even if nothing needs to be done at this time. I personally recommend Shine Lawyers, but that’s your decision.
Other resources are available to you include the WorkSafe website which contains a very detailed publication called the ‘Online Claims Manual‘. This contains detailed instructions from WorkCover to its agents on how to handle claims. It also includes very detailed information about the calculation and payment of WorkCover benefits. Remember this information is written from WorkCover’s perspective only. Nonetheless, this can be a useful resource for people who want detailed information.
3.Assess your future work capacity
One of the most difficult areas which you will experience with WorkCover is the question assessing your future work capacity and dealing with issues of rehabilitation and potential return to work. You must always remember that WorkCover will do whatever it takes to get you back to work, at whatever cost, even if your doctor and specialists say you are not fit for work. It’s a matter of liability for the workcover insurance and potentially a massive economic loss damages claim can be awarded to you.
In theory, the WorkCover system is “strongly committed to rehabilitating claimants and providing assistance to enable a return to work” (see above). Rehabilitation, however, means different things to different parties. Some employers are genuinely committed to rehabilitation and a proper, appropriate return to work; however the majority, have no genuine interest in returning an injured worker to meaningful work and so provide only minimal assistance ” to keep WorkCover happy” until they can officially sack you (after 12 months), or will make a case of ‘constructive dismissal’ and make false allegations such as that you are not performing well etc. These employers are usually easy to identify, they use phrases like “we don’t have light duties” or “don’t come back without a full clearance certificate”. Other employers will only make meaningless and demeaning work available. Unfortunately, in these cases, a return to work can be like a ‘guerilla warfare’ which is, ultimately, aimed at squeezing the injured person out of the workplace. Just browse through some of the comments posted on this blog and you will see for yourself that many injured victims have been unfairly sacked. It also happened to me (after no less that 10 years employment, and even a renewed contract 1 week prior to my last surgery based on an excellent performance review). In many cases, you can make a claim for unfair or unlawful dismissal or discrimination. But you really need to seek proper legal advice because many of these laws will or may interfere with your potential common law damages claim. For example, should you proceed with an unfair dismissal you may well be reinstated (do you really want to work for an employer that treats injured workers like that?) or you may get a few months salary, that’s it. On the other hand, a sacking may be a goldmine in a case of a damages claim for economic loss because, hey, here your employer (and thus workcover) tells you that you can’t work, see what I am saying…
4. Try to deal well with WorkCover and your Case Manager
When you deal with the WorkCover system, the WorkCover insurance company, your claims manager etc., this can have a significant effect on your claim and on your stress levels. Always keep good records and try to develop a good relationship (where possible!!!!) with your case manager.
- It is extremely important for you to keep good records/notes. For example, if you wish to claim travel expenses you need to be able to produce details of all your trips to and from the doctors you saw, so keeping a log and the receipts for parking, tram, train fares etc will make life easier. Another example, If there is an argument about your weekly payments because WorkCover alleges that you are not looking for work, keeping a record of all your attempts to obtain work can put you in a much more favourable position (i.e. interviews, phone calls, CVs mailed out etc).
- Always refer to your claim number when you contact WorkCover. Find out the name of your case manager (sometimes they change like underwear! ) and ask to speak to them directly. If you have a discussion with any other person, always make a note of their name and extension number/email. It can be very frustrating to deal with multiple people over the same issue and to have to repeatedly explain the issue. I personally -and from experience- always and only communicate in writing because I have noted that they will often completely twist and misrepresent/document your conversation.
- Keep your own copy of all important documents. For example, when you receive a certificate of incapacity, the original should be provided to your employer. It is most useful for you to send a copy to your WorkCover agent and to retain a copy for your own records. This will help to overcome any (and often) delays in making payments to you.
- When submitting your medical certificates ensure that you complete the section on the back of the certificate about your work activities. After many years off work, it has happened once or twice to me that I forgot to sign the back of the form because I was in hospital having surgery, and still those bastards would not process the certificate, not pay me, and send the certificate back to me (imagine the delays). It is also useful to try and ensure that your certificates expire on a Saturday or Sunday to make it easier for WorkCover or your employer to calculate your weekly entitlement. This enables weekly benefits to be paid in whole weeks. It still amazes me how often I will receive a different amount each fortnight!!!
- Try to develop and maintain a “constructive”, “collaborative” working relationship with your WorkCover case manager. The case manager will have to make important decisions about your entitlements. Having a good relationship will be to your advantage. Sometimes the decisions that a claims manager makes can be very frustrating. Losing your cool can backfire as you will run the risk of being labelled as difficult or as suffering from a psychological problem. However, you are entitled to request and receive an explanation of a case manager’s decision and to discuss the decision freely with them, but it is important to ‘keep your cool’. I must admit, I currently (for the past 2 years) have a case manager from hell and I think she is vindictive. I have not been able to keep “my cool” and stopped talking to her after only 1 week. She was then issued with a restraining order by my solicitor which she breached after 3-4 months when she started emailing me up to 5 times a day. I even asked her nicely and then not so nicely to stop emailing me which she ignored. I have told her on many occasions that I believe that she is compounding my depression and PTSD. More recently she has been requested by my treating psychologist NOT to email or phone me ever again and that all correspondence needs to be in writing via post and that all letters will be opened by the psychologist. My case manager is a nutter. The things she has told and written to me via email are really disturbing. Those things include: that I do not need to see a psychologist or a psychiatrist because I can talk to her (I had just been illegally sacked and was suicidal at the time, no kidding), when she was told that my injury had catastrophically deteriorated (and the surgeon even requested major surgery, home help, taxi etc), she said that she was NOT interested in my physical condition but only wanted me to be psychiatrically assessed,and, hold your breath, that the reason for the assessment was to assess my fitness to engage in rehab and to return to work!!! When taxi travel was requested on physical grounds, she wrote to me (email) that in order to make a decision for taxi travel I needed to be assessed by an independent shrink… etc.
- If you disagree with a decision, you can indicate to them that you understand that they have to work within guidelines. You can ask them to identify their superior (aka Team Leader) and request to discuss the matter with them. If you still disagree with the decision, you should dispute the decision by referring the matter to conciliation. Many WorkCover decisions are overturned at conciliation. It is also very important that they provide you with a rejection letter. It is illegal just to email you (or tell you) that they won’t pay for this or that!
- Should you wish to contact WorkSafe to lodge a complaint about any aspect of the service that WorkCover insurance company has provided to you, you can do so via their email address which is [email protected]. WorkSafe is actually pretty good and they are very friendly.
- If you believe that your claim has been seriously mishandled, of course, you can complain to the State Ombudsman. This can be a major step so it is important to ensure that your attempts to resolve the issue through other channels have failed. Note: I have been told by a WorkSafe insider that may complaints to the Ombudsman get passed onto WorkSafe – so perhaps first contact WorkSafe and see whether they can help you first.
5. Obtain legal advice sooner rather than later
When you suffer a permanent work injury, it is likely to have many impacts on you, and not only financial effects. It is very important that you obtain proper legal advice with an experienced personal (workcover) injury lawyer so that you can be prepared for some of the issues that may arise as your condition and case progresses. If you don’t have a lawyer and are looking for one, I personally recommend Zaparas Lawyers (no strings attached, I do not benefit in any way, shape or form by “advertising” rest assured!) Do your research, for there are quite a few sharks out there that are preying on vulnerable victims like us and I actually know of a few fellow injured workers who have been left in DEBT after having received their ‘compensation’!!!! If that is not fully sick!!! Be very very careful indeed.
I changed over from one law firm to another …. so that is possible to and if you are not happy with your current lawyer, or smell a rat, look around and perhaps check out Zaparas lawyers.
Hope all this helps 😉