Gaius Whiffin with Deborah Knight discussing Personal Injury Law

Tuesday, 13 November 2018

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

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DK      Now over the past few months the State’s Environment Minister Gabrielle Upton has been in the news – not so the policy decisions, but Ms Upton’s been making headlines because of a supposedly very toxic culture within her office – she’s got a really high staff turnover in the past 18 month s- 16 people have left and have advisors reportedly only last a couple of weeks. One former senior policy advisor received workers compensation after he left Ms Upton’s office suffering severe stress and I don’t know about you, but I didn’t realise you could receive workers compensation for something like this – it does make you wonder I guess what sort of compensation you might be entitled to if you’ve ever been in a really bad work place. So we’ve got all of these questions answered for you today in our personal injury segment and if you’ve got any of the questions related to personal injury, now is the time to give us a call 131 873 and it’s thanks to Turner Freeman Lawyers and their Legal Matters segment we’ve got a $100 Westfield voucher to give away as well to the caller who does ask the most relevant question of the day. Turner Freeman Lawyers – turning lives around with a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and Estates and property law. And Gaius Whiffin who is an accredited specialist in personal injury law – he’s got close to 30 years experience in fact in workers compensation claims, motor vehicle accident claims, skin cancer and public liability claims. So we are very lucky to have him with us. Gaius. Hello to you.

GW     G’day.

DK      Now I thought workers compensation was about physical injuries but clearly not.

GW     No no.  If you’re injured psychologically…. if you have stress – from a work environment, you are entitled to compensation; if you are incapacitated for work because of that.

DK      It must be hard to measure though from an insurance point of view – how do they work out whether you can receive compensation or not?

GW     Well it’s all a matter of the medical advice that’s been given and the condition has to be sufficient to put someone off work, so it’s not sufficient that you’re a bit stressed – there has to be a diagnosable disorder – and if that’s medically certified, then – and if the conditions at work are sufficient to cause that, then you’re entitled to compensation. There is an exception to that – I mean there is – if the employer is reasonable in their actions and it’s those actions that have caused the stress, then you’re not entitled to compensation. Say for example you’re terminated because you’ve had your fingers in the till and you get stressed because of that, well you are not entitled to compensation because that’s the reasonable reaction.

DK      Okay – what about things like bullying – could a worker claim compensation for workplace bullying?

GW     Again, if that is sufficient to put them off work and in a lot of cases that’s probably these days the main – you know – the main reason why people do have psychological injuries from work is intimidation, harassment, bullying from other members of staff.

DK      Okay. Glen is on the line with our first call through Glen from the Northern Beaches – what’s your question for Gaius?

Caller 1 – Glen

Glen    Yeah – hi Gaius – thanks for taking my call. My son was involved in a near fatal car accident a few weeks ago and we’re still actually in a hospital at the moment – I’m just driving back there now and I heard this segment come on – he’s actually got some life changing injuries – thankfully nothing that’s going to be permanently damaging to him – but he’s lost his kidney and his spleen – and I just wonder what path I have to go down in order to get compensation advice?

DK      I’m sorry for your – for this happening to your son and your family Glen but we’ll see if Gaius has got an answer for you.

GW     Yeah. That’s bad news Glen but the first thing – there are a number of requirements now if you have – if you’re injured in a motor vehicle accident.  It comes under an Act that was brought in last December. The first thing is you need to make sure obviously the police were involved.  That’s the first thing. The second thing is within 28 days you need to lodge and it is better to do it as soon as possible – lodge a claim form with the insurer of the vehicle that was at fault in the accident. So generally in hospitals you will have social workers and so forth that will help you do that.  There are some forms that need to go with that – there are medical forms and so forth which doctors fill in. If you have any queries though in significant injuries, such as what your son seems to have unfortunately gone through – it’s probably wise that you seek some legal advice earlier.

DK      All right – I hope that helps you Glen.

Glen    So much.

DK      Ok – good on you and pass on our wishes to your son as well. 131 873 – if you have a question for Gaius – we’re talking workers compensation issues specifically today but if you’ve got any issue that you have a question regarding it – it can be a really fraught area, so now’s your time – it’s free legal advice. 131 873 and Gaius in terms I suppose the test that the insurance companies give – what happens if the person making the claim has a history of mental illness, does that make the claim their making that much harder?

GW     Well it’s entirely relevant and it really does depend on what’s happened at work. So, it needs to obviously if they have a history of mental illness  that has to be taken into account. But if there’s also been some significant stress at work whether that be bullying or whether that be a toxic environment that this person was exposed to – it’s the minister’s office in this story – it depends – I mean – sometimes it’s – you can have a – if you do have a history – there can be something that’s entirely reasonable that sets off the aggravation and if that’s the case, it may be very difficult because your employer only has to be reasonable.

DK      So what are your tips for people I suppose if you are in a work place that comes under that gamut of being considered a toxic workplace?  What should you as the person working in that environment be thinking that?

GW     Well I think the first thing that you need to think about is actually getting some – if you are feeling that stress, I think the first thing you need to think about is actually getting some medical attention because it may very well be the case that with that attention and with going through the certain channels, that most employment places go – that have – that you can sort of go through in terms of …. and I’m trying to deal with that environment – it may be that you don’t need to proceed much further with a workers compensation claim. You’re entitled to your medical costs. So the first thing to do really is to seek some medical attention.

DK      And how often do insurers approve workers compensation for psychological issues? Because I’ve been told that it would be really hard to get compensation for physical injuries, so I’d imagine it would be that much harder for psychological injury?

GW     Oh.  It’s probably……..  Look I mean an injury is an injury – whether it be physical or psychological – if that injury puts you off work and if that has been medically certified, you’re entitled to compensation. So again it depends upon the medical evidence – and it depends upon what your doctors say……….

DK      Okay – Lisa is with us on the Northern Beaches – Lisa – Hello.

Caller 2 –         Lisa

Lisa     Yes – Hello – look thank you so much for taking my call. My question is about public liability. I had quite a bad accident when I slipped on a travelator in a local shopping centre. The year – sorry – the beginning of last year. I had to have surgery on my ankle and then at the end of the year, that same year – I subsequently found that my back was injured as well – I had to have more surgery early this year. So, I’m still recovering from my back surgery and my question is – you know – is there – I have already been in contact with the insurer and have been keeping them up to date, but my question is – is there a sort of a period by which I need to actually finalise the claim.

GW     Ah, yes there is. Basically you have 3 years to either finalise the claim or to commence Court proceedings. With the public liability case and if you’re injured in a shopping centre – you’ve got to be a bit careful because you’ve still got to show that the shopping centre was negligent at the time of your injury. So if you’re going up the travelator and you slip on some oil that’s been there and it’s been there for a long period of time and should have been cleaned up, well that’s indicative of negligence. But you have to be very careful in these cases.

Lisa     Okay – Yes I do – I understand that

GW     It’s 3 years.

Lisa     Yes….

DK      3 year period.

Lisa     That’s right 3 years.

DK      3 year period – all right.

Lisa     Okay that’s great.

DK      Thank you for the call Lisa. Appreciate it. John’s with us in Cronulla. Hi John.

Caller 3 –         John

John   Hi – how are you going?

DK      Good – what’s your question?

John   My wife was involved in an accident at work and she works for the Commonwealth Bank and their self-insured – workers comp. We went to solicitors after solicitor after solicitor and no-one wanted to help her – and they said ”you can’t sue the Bank” – they can’t help you. Why?

GW     Well with the Commonwealth Bank – don’t come under NSW Workers Compensation, they come under the Commonwealth Safety Rehabilitation & Compensation Act which is an entirely different Act, so unfortunately in Australia there are different Acts in each State and if you’re employed by the Commonwealth or something like the Commonwealth Bank – you come under another Act. Now, when you are injured in work with the Commonwealth Bank – you are still entitled to various forms of compensation such as incapacity payments when you’re not working and medical costs – but it’s a lot lot harder to make a claim for negligence.

John   You bet it is……

GW     It’s a lot harder and in most cases I have to say, if you have a serious injury, it’s probably not worth it – there are caps on what you can get when you sue under that particular Act for negligence and in most cases if you have a serious injury, you’re better off just stay under workers compensation – not all the cases – I mean at the end of day you do need to get obviously legal advice, but it sounds like you’ve been through the wringer there.

John   I have – I even went to my local member because I was told to try him and he had no idea. And I just think wow – you know – where’s the help – really – where’s the help? There’s none – there is not much we can do – well thank you for explaining it to me – I appreciate it.

DK      All right – good on you – thank you for the call – appreciate it – 131 873 – the open line number – we might have room for another caller or two if we can squeeze them in – 2GB.com, 4BC.com.au – It’s always a popular segment this one. Tony in Canberra – what’s your question?

Caller 4 – Tony

Tony   My question is, my wife was injured at work and now the diagnosis – the injury has lead to chronic pain syndrome which means another way of saying that the pain is never going to go away. So she is in the process of losing her job – how long will she be covered for under insurance – under workers comp?

GW     Well she’s covered for as long as she is incapacitated for work – so if in fact she is unable to work ever again – let’s hope not – but if that is the case, then she’s basically covered until retirement age for incapacity payments. Again, I think – Tony was it sorry?

Tony   That’s not the signals we are getting  – yeah.

GW     Tony – if you’re in Canberra, your wife may be covered by the Commonwealth Act right? You……

Tony   No in Queanbeyan.

GW     In Queanbeyan. Oh Ok. It’s that same under the  – under the NSW Act, it, the coverage that you get depends upon the level of your whole person impairment eventually. So if you have over 20% whole person impairment you can be covered for the rest of your life. As long as you have medical certificates certifying incapacity. So that’s the NSW Act. If you’re over 30%, you’re definitely covered. If you’re over 20%, you’re covered as long as you’ve got those certificates.

Tony   Who’s the doctor that determines what the percentage is now?

GW     Well – at the end of the day, there are doctors that are qualified by the State Insurance Regulatory Authority to make these assessments.  The assessments are made under pretty complicated guidelines based on the American Medical Association Guidelines. If – the – how long has your wife been off work?

Tony   Oh, she works part time – she works a couple days a week now for the last year.

GW     Okay – well you’ve got to make sure that within the period of 5 years that you get those assessments. Now the best thing to do is to go to a lawyer and they can apply for funding to help you out and you don’t have to pay – you get the funding through a mob called WIRO – Workers Compensation Independent Review Office.

DK      All right Tony. I hope that does help you out and unfortunately we are out of time – if you do want information, you can contact Gaius or any of the other lawyers at Turner Freeman at turnerfreeman.com.au – you can call 13 43 63 as well. And thanks to Turner Freeman Lawyers, we do have this wonderful $100 Westfield voucher to give away to the caller asking the most relevant question of the day really – and I think we should be giving this to Glen in the Northern Beaches – what do you reckon Gaius?

GW     Yeah – I think so.

DK      He’s going through a terrible time with his son, so Glen we will get that voucher from Westfield your way for you and your son and your family going through this difficult time. Turner Freeman of course providing a range of specialised legal services, compensation and negligence law, asbestos litigation, family and employment law, Wills and Estates, commercial litigation as well as superannuation and disability claims. And again that number for Turner Freeman Lawyers 13 43 63. Gaius – always  – too many calls to get through – but you’re advice is very welcome – thank you so much.

GW     Thanks.