Gaius Whiffin discussing Workers Compensation on 2GB - 20 July 2021

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DK – Deborah Knight / GW– Gaius Whiffin /C1,2,3, etc – Callers

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Read the transcript below:

DK      That time of the week again legal matters and today it is all about workers compensation. If you’ve got a question a query the open line is 13 18 73. Maybe you’ve been injured on a worksite or maybe you’ve got an issue to do with injuries that continue to occur or something else from your office. With the ongoing lockdown maybe you’ve been injured while doing your job at home.  Are you entitled to compensation?  13 18 73 is the number to call and as always we’ve got our $100 Westfield Voucher for the best call of the Legal Matters Segment.  Gaius Whiffin a Partner at Turner Freeman is on the line for us now.  Gaius thank you so much for joining us.  It is timely that we are talking workers compensation because I think a lot of people have got questions with the lockdowns and working from home, but the big news since we last spoke with relation to workplaces is that construction has been shut down as part of the Sydney lockdown.  Is construction generally speaking one of the main places we see compensation claims coming from?

GW     Ah yes good afternoon Deb yeah that’s probably certainly is an industry that has its issues with injuries at work, obviously it’s a fairly heavy industry and you certainly do get a fair proportion of significant injuries happening in the construction trade that’s right.

DK      And we have had a lot of calls on the show with people very distressed about not being able to go to work, losing work with a construction shutdown and across the board in other industries too.  If your job has gone as a result of the lockdowns if it’s been cancelled or put on hold would you have any course of action from a workers compensation point of view with issues like mental health?

GW     That would be a difficult one Deb.  I’m not aware of any case that’s been proceeded with in that regard.  The issue is that a mental health or a psychological injury is what they call an occupational disease under the Workers Compensation Act and for an occupational disease to be compensable employment has to be the main contributing factor to the condition.  Now in a case where there’s a lockdown brought about by government I would think that the lockdown or the government actions rather the employer’s actions are probably going to be the main contributing factor.  It might depend on its facts and the other issue you have is that in New South Wales anyway there’s a Section 11A the Act which prevents a claim for a psychological injury basically in situations where an employer has acted reasonably.  Now of course if a work is subject to a lockdown the employer has acted reasonably in saying well don’t come into work so I think it’s going to be difficult.  I’m sure there will be a test case in relation to it but I think it’s going to be fairly tricky.

DK      Alright you may have a question 13 18 73.  Shane is first up for us today. Hello Shane.

C1       Good afternoon Deb and Gaius from Turner and Freeman.  Look I’ve got a question for you.  I was on my way home from work most recently on the bus ready for my stop and I was holding onto the railing as well.  The driver braked heavily and I fell so did another lady now I’m now suffering from neck pain and quite excruciating lower back pain, which is medicated through my GP, but I’m able to work let alone endure a good night’s sleep.  What angles of course would I have in terms of my worker’s comp claim hasn’t been approved yet.

DK      Alright, Gaius.

GW     Yes Shane you will probably have difficulty with a workers compensation claim.  They made some amendments to the Act in New South Wales in 2012 and basically journey claims your periodic journey from home to work is generally not covered.  There are some exceptions however the good news is that you’re probably covered by the Motor Accident Injuries Act.  You’re in a motor vehicle the accident is due to the heavy braking and you’re probably covered by the Motor Accident Injuries Act so it is actually quite important that you probably get some legal advice to make sure that you put in a claim form under that Act rather than the Workers Compensation Act.  I’m not saying you’re definitely not entitled to workers compensation it might depend a bit on the facts as to the nature of your journey but you’d almost certainly be entitled to compensation under the Motor Accidents Compensation Act.

DK      Alright Shane if you could stay on the line I might pass your details onto Gaius cause it looks like you could investigate that one further.  Warren’s also got a question for you Gaius.  Hello Warren?

C2       Hello Gaius hello Deb.  Thanks for taking my call.

GW     Hi Warren.

C2       Look just regarding an injury I sustained at work and I was diagnosed and sent to the insurance company denied the claim and sent me to an independent medical examiner who then sent a report off and now the insurance company is saying that that report’s now got to be analysed by a legal team.  It’s been like 12 week in the wind this all happening.  What next steps should I take and what timeframe have they got to make decisions?

GW     Yeah well you’re probably outside their timeframe.  It depends what other action they’ve taken.  The best thing to do at this stage Warren is to contact the Independent Review Office what’s known as the IRO.  You can look them up on the website and they’ve got a pretty reasonable sort of web page where you can actually get in touch with people or there’s a number also that you could ring someone.  They actually investigate things like delays with the insurers and they do a good job and it seems at this stage that that’s probably the case.  It may be that the insurer admits the claim.  If the insurer doesn’t admit the claim then you’ve got legal action involved, but at this stage I’d give the IRO a call and see if they can help you to get the insurer to make their decision quicker.

DK      Alright I hope that helps you out Warren.  Dawn’s got a query about working from home.  Hi Dawn.

C3       Hi look I was just wondering I was working from home and I’ve been able to retire back in April and I felt yeah an issue sort of occurred with my back despite the fact trying to make my home workstation suitable and I thought it might sort of abate once I retired and not sitting at the desk for all those hours every day but it hasn’t so I’m thinking well I’m retired now what’s my hope for any sort of workers comp.

DK      Ok Gaius.

GW     Yeah well the fact that your retired Dawn won’t preclude a claim. Certainly if you’re working from home and if you’re at an unsatisfactory workstation and you suffer an injury as a result then yeah you could be entitled to workers compensation payments.  Now especially in relation to obviously your case treatment costs at this stage since you retired you want to get some treatment in relation to you back injuries so as long as your GP is supportive of the back injury being related to your employment set up then it’s worthwhile making a workers compensation claim.  The success will depend a lot on things like how long you were actually working at home, how bad the workstation was and the actual nature of the back injury but it’s certainly worthwhile making a claim.

DK      Alright Dawn I’ll get you to stay on the line too and I’ll pass your details onto Gaius.  It’s just weird that the working from home Gaius we are a few weeks into the lockdown in Sydney and in Victoria as well we know that they’ve had previous lockdowns there into an extension of their lockdown too.  Have you seen a spike in workplace injury claims from those who are working from home?

GW     Not so much this year, but certainly last year there was a during the lockdowns sort of in March, April, May last year there was certainly a spike in claims.

DK      And what sort of injuries can people claim on or what sort of issues?

GW     Basically if you’re working at home you’re covered for workers compensation while you’re working at home so you could certainly be for example as Dawn had issues with her work set up and so forth I mean I go home and work and I’m at my dining table and that’s not the best sort of ergonomic setup but you know this is a problem when you’re working at home but if it causes an injury yes you could be entitled to compensation.

DK      So employers are responsible to help out workers who have been moved to that home office in terms of providing chairs and office furniture are they?

GW     Well not look I think if what your suffering from is you’re a bit worried about your work set up at home the first thing to do is to speak to your employer.  Your employer does need to look at the work situation, does need to make sure that you’ve got a set up that isn’t to cause injury and I mean it’s very much also in the province of the individual to actually bring this situation to the employer.  Now it doesn’t matter necessarily if you haven’t thought oh no this is probably ok I won’t be long that I’m working in this situation and you get injured you could still have compensation but if you’re worried that you  might get injured yeah speak to your employer.

DK      Alright we’ll take a quick break. More of your calls 1318 73.  Frank’s got a question for you Gaius.  Hi Frank.

C4       Hi Deb hi Guy I was fire and rescue and in 2013 I was forced into medical retirement suffering from PTSD.  Since then I’m still getting payments and I’ve asked several times and different insurers the one now is EML and about superannuation and they say well we don’t have to pay that and to me their my sort of de-facto employer.  I’m just wondering what the true situation is there Guy.

GW     Yeah unfortunately Frank their right.  When you’re getting weekly or periodic payments of weekly compensation because of your inability to work you don’t get superannuation on top of it. Unfortunately it’s not covered by the Workers Compensation Act so not a lot unfortunately that you can do about that while you are receiving those weekly payments.

DK      Has that been looked at changing that issue because it seems as though people would be missing out quite a lot.

GW     Yeah and that’s always been the case unfortunately.  Whenever there’s been periodic payments going back all the way back to well the first Workers Compensation Act in New South Wales I believe was in 1926 but the periodic payments that you get don’t have superannuation on top of them.

DK      Frank stay on the line I’m going to send you out the $100 Westfield Voucher because if you’re missing out on payments like that I reckon we can help you out with something at least so I’ll give you that $100 Westfield Voucher that we’ve got every week to give away as part of our Tuesday Legal Matters Segment.  Warren’s also got a query for you Gaius. Hi Warren.

C5       Good afternoon Deb good afternoon Gaius.  Thanks for taking my call.  I just have a question on pre-existing conditions.  I in construction was injured 3 years ago and had both my legs crushed.  I have had knee replacement the fractures tibia and fibular repaired but I had arthritis in my left knee.  That knee has since been replaced the arthritis didn’t cause the accident didn’t contribute to the accident and it’s now gone and yet the ……. deducted 10% off my whole my person impairment assessment.  No one can answer me why.  I mean my argument is the arthritis didn’t cause it.  I was asymptomatic and now I’ve been hit with a deduction for it.

GW     Yeah Warren there’s a section in the Workers Compensation Act Section 323 that deals with pre-existing conditions now a pre-existing condition doesn’t need to be asymptomatic condition and very often there is a 10% deduction because the section in the Act actually says that if it’s too difficult to work out what the deductions should be then you apply 10% so that if an assessor whether it be an assessor that you go to or whether it be the insurer’s assessor or whether it be the Personal Injury Commission’s Approved Medical Specialist they’re required to make a 10% deduction if they believe there was a pre-existing condition which can be as simple as degenerative change in your back or arthritis as you say in your knee and if that has contributed to the actual level of impairment but they can’t say well how much it is but they’re sure that obviously the main part of the impairment’s been due to the injury.

DK      Alright Warren it sounds as though I mean the frustration I can hear it and its one of those complex areas but hopefully that gives you some of the answers you’re after.   Charlie, we’ll see if we can squeeze you in the segment today as well.  Hi Charlie.

C6       How are you?

DK      Well thank you.

C6       I’m just talking about compo.

DK      Yeah what was your question for Gaius?

C6       Well I got compensation I was deemed 20% and I got $30,000 but the thing is I cannot work ever again and I’m only 57.  Why would I only get $30,000 for?

GW     Charlie is it Charlie that’s a bit difficult to answer over the phone without knowing the full facts.  A 20% finding under Section 66 of the Act would get you around about that sort of amount but you’re also entitled to other compensation under the Act that if you’re unable to work you’re entitled to weekly compensation, you are entitled to medical expenses payments.  On a figure of 20% you may also be entitled to bring other claims so it’s a bit difficult to answer over the phone as to why you only got that.  A lot would depend upon when you get the money too because the laws have changed quite significantly over the years so …..

DK      We might get you to stay on the line Charlie and maybe you can pass on some of the specifics to Gaius and get some more answers that way but Gaius we’re out of time thank you so much for joining us.

GW     That’s ok.  All the best Deb.

DK      Gaius Whiffin there and if you need help with any legal matters Turner Freeman 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 and you can get in contact with them directly at Turner Freeman turnerfreeman.com.au or give them a bell 13 43 63.