Ben Grosse on the 2GB Deborah Knight Show discussing Personal Injury 12 October 2021

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DK – Deborah Knight/BG – Ben Grosse /C1,2,3, etc – Callers

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Read the transcript below:

DK      And this week we are speaking personal injury because we’ve finally seen freedoms of course in New South Wales but maybe you’ve been injured while you’ve been out and about or you’re a business owner and you’ve seen a rush of customers, it’s been pretty wet, rain is forecast for the rest of the week, maybe someone has taken a tumble, slipped at the store or the venue and suffered an injury, what’s your recourse, if something like that occurs. The open line number 131 873 and if you’ve got an issue, a question, a query, our best call will also win themselves a $100 Westfield voucher, so call in now 131 873. Ben Grosse is a Partner at Turner Freeman, he’s on the line for us now, Ben thanks for joining us.

BG      G’day Deb, how are you?

DK      I’m good, did you head out yesterday and enjoy freedom day? 

BG      Oh no, look I was working.

DK      Oh were you? Head down, you guys work hard there.

BG      But I enjoy working.

DK      Well that’s true and that’s one of the joys I think a lot of people are saying I’m glad to go to work which is a turn up for the books, like kids saying I’m glad to go to school. But yes, it’s turned a lot of things on its head. Now, it was very busy across Sydney though yesterday and I think the majority of personal injury claims you see, aren’t they, are from crowded areas.

BG      Yeah, look it’s obviously when you have lots of people milling around in a confined area like a shopping centre obviously, but increases the incidents of those sorts of issues unfortunately/.

DK      And if someone took a tumble heading between stores yesterday, heading out of a cafe and then on their way home getting a take-away to take home and they slipped and fell, would you have rights to compensation?

BG      Yeah look potentially, and generally speaking those rights in most cases would be against the shopping centre operator or whomever is responsible for looking after the cleaning of the shopping centre to take that example, but I mean at the end of the day the most important thing is to ascertain how the person came to fall over because at the end of the day you don’t know how you fell over, well not much can be done about it unfortunately, sometimes accidents happen.

DK      Yeah and with workers compensation claims too, we’ve seen in the news recently that people contracting Covid, that claims for worker’s compensation, there are concerns that they could well sky rocket in the next 12 months that employers are responsible for providing a safe workplace which ensures that people are double vaccinated and that’s why a lot of workplaces are bringing in mandates for vaccinations to occur but generally speaking, if you’ve got a claim for worker’s comp, what do you need to prove?

BG      Yeah look, there’s two classes of people, approximately 12 months ago a reform was passed with the effect that certain workers if they do contract Covid-19, whether it be the Delta strain or otherwise, if they’ve worked in the preceding few weeks they’re actually presumed to have contracted the disease at work. Now that’s obviously very significant because as you can imagine, it’s very difficult to prove even to the civil standard that somebody contracted the disease at work as oppose to elsewhere, so you know, when you’re talking about for example paramedics, police, cafe workers, there’s a range of people who are falling into this category. They effectively almost get a free kick, it would be up to the employer of a worker’s compensation insurer to demonstrate that they had in fact contracted Covid elsewhere, which carries with it the same difficulty, basically the flip side of the same coin. So that’s the first class of workers, on the other hand you have workers who don’t get the benefit of that presumption and obviously it’s very difficult for them to prove when and how they contracted the disease.

DK      Because we know that with Covid it can sometimes be asymptomatic, people don’t have symptoms but what would happen if you develop long-Covid symptoms after an exposure at work? From someone who didn’t have symptoms?

BG      Yeah, it would be entirely dependent on whether you can establish that you contracted it at work or not and subject to those presumptions.

DK      Yeah which is again always difficult to prove but that’s your first step with any compensation claim. If you’ve got a question 131 873 is the open line number. Patrick has called in. G’day Patrick.

Caller No 1     Patrick

C1       Oh, good afternoon, how are you?

DK      Well thank you. What did you want to know from Ben today?

C1       Good afternoon to ben too. I’ve been on worker’s comp for I think it’s 130 weeks now and I got a call from the insurance company last Thursday saying they’re going to throw me off and that’s it, you know go on the dole or something, is that how it works, cause I’m not actually a malingerer, I tore my rotator cuff at work, I used to be a truck driver?

DK      Ben do you have an answer for Patrick?

BG      Yeah sure, Patrick look, that’s not necessarily how it works and look I’d encourage you to seek advice about it. I mean it’s often the case that insurer’s will issue these sorts of notices where they suggest that people should no longer have any rights for a variety of reasons but look, you know, probably the majority of time we can get those decisions overturned, it just depends on the circumstances.

DK      Well stay on the line Patrick and we’ll get your details over to Ben and investigate that further and we’ll also give you the $100 Westfield voucher as well because I think some help would be due to come your way if you’ve been suffering in that way, so Patrick stay on the line we’ll get your details. Just the other issue too Ben, that I think a lot of people now working from home, will that do you think lead to more claims for worker’s compensation, because obviously people when they’re travelling to and from the office and within the office scenario, will you have to deal with a whole new range of claims that you haven’t seen before with more people working from home and wanting to keep working from home, even when we open up.

BG      Yeah, look they come with their own issues and one of them which you might expect is that I think just intuitively the insurers are more likely to require some form of proof from a worker that it happened because as you can expect, if an injury happens at a busy workplace there’s often witnesses, whereas you know, if somebody is working alone at home, you know they might be treated at a greater degree of scepticism rightly or wrongly.

DK      And with the recourse, because you mentioned with Patrick that you could take that up further, what do you need to do if you’re not happy, what do you need to prove with either being taken off worker’s compensation in his case after a long period of time, or if you aren’t happy with the compensation payout that you’ve received from an insurance company or from an employer, how hard is that to overturn decisions?

BG      Oh look, generally speaking it depends on the sort of dispute that you have. I mean in worker’s compensation you can have any number of sorts if disputes, you know it’s common to have a medical dispute, you know whether a person requires a particular form of medical treatment or not or you know a decision about what the degree of your impairment is so as to determine what lump sum compensation entitlements they have. It’s also not unusual to get factual disputes, you know an employer or an insurer seeking to argue that an injury didn’t happen. In either case however it’s just a matter of getting the appropriate evidence together whether it be a report from a doctor or witness statements, the first step is to present any information to the insurer and seek a review and look sometimes they do the right thing and they reverse the decision. If you don’t get a favourable outcome at that stage, it would be a case of taking the employer and insurer to the Personal Injury Commission to seek a determination.

DK      And as always seeking expert advice from someone like yourself. Good on you Ben, thank you for joining us.

BG      No worries.

DK      Ben Grosse there from Turner Freeman Lawyers. They provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law. If you want to get in touch with any of the team at Turner Freeman 13 43 63 is the number to call or their website turnerfreeman.com.au.