Q & A on 2GB discussing workplace issues 4/10/2016
Tuesday, 4 October 2016
CS –Chris Smith /RD – Richard Dababneh /C1,2,3, etc – Callers
CS Well this is the start of National Safe Work Month and every year more than 260 Australians die as a result of work related injuries and 135,000 are seriously injured. That’s a hell of a lot of people. So today we are going to look at what you can legally do if you are injured in a workplace and thanks to Turner Freeman Lawyers and our Legal Matters Segment, we have got a $100 Westfield voucher to give away as usual to one of our callers. So be aware of all of that. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law Wills and estate and property law. Their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. If you’ve got a question on personal injury, my tip is get in early, don’t wait around, you will miss out. It happens notoriously, almost regularly. 131 873 is the telephone number on personal injury. Now, Richard Dababneh is an accredited specialist in personal injury law. He’s based at Turner Freeman’s Parramatta office. He sees clients from all over the State and he joints me right now. Richard. Thank you very much for coming in.
RD G’day. Thanks for having me.
CS Are you puffed out? Because you ran into the studio?
RD Yeah. hahahaha
RD It’s a bit of a drive from Parramatta……
CS It’s a bit of a drive into the City. It’s great to have you here. Every year we see more than 260 Australians die as a result of work related injuries and over 135,000 seriously injured. Why is that way too high? Because it is.
RD Well I think it’s a number that is probably decreasing with time. Well I suppose it’s probably more people – a higher population rate as well, but it is a number that is decreasing. I think over the last probably decade, 15 years there’s been a drop because of the OH&S, the improvement there – general improvements. But you know, it is still a high number. It’s a number that should really be down towards zero in terms of deaths.
CS Like we had drama last week at North Sydney when this crane collapsed but thankfully because of the harness safety systems we run in this country, those people were saved because they were locked into harnesses.
CS Which thankfully saved their lives.
RD Yeah, thankfully and I’m sure there are a lot of countries out there that don’t have the same level of safety that we have in this country.
CS Okay, if I’m at work and I’m injured, what type of claim is available to me? What are the avenues?
RD Well the first claim is obviously your workers compensation claim as a worker; you have the right compensation – statutory compensation – there’s a statutory regime in every state in the country and….
CS How do you make a claim on that?
RD You firstly have to notify your employer. So if you are injured at work and it’s not a frank incident, then you need to let your employer know and then you have to go see your doctor straight away and in circumstances where the employer already knows because they were there and witnessed it then head off go see your GP, get a certificate and go back and see your…..
CS Are there any limits on claiming through that course?
RD In terms of what you are entitled to – yes. It changes state to state and nationally as well but in terms of the NSW regime, there are limits to what you are entitled to. For example, if you are injured unfortunately in this state, you will almost straight away lose income because the maximum you can get in the first 13 weeks is 95% of your wage and it drops after that to 80%. So you know if you are unlucky enough to be off work for more than 13 weeks then you’re going to be losing 20% of your income
CS Yeah. Right.
RD And there’s no real makeup pay system unless you have your own personal insurance.
CS So you are going to be behind the [eight ball] no matter which way it goes. Does it matter whether someone’s at fault or not? Or is that another avenue you take?
RD That is another avenue. So with the state system – the statutory system, it’s a no fault system so if you are injured at work you have an entitled. If you are able to establish or it’s a serious injury and you are able to establish that your employer was in fact negligent then there is another avenue called Work Injury Damages.
CS Work Injury Damages?
RD Yes that’s a modified common law system. It was modified in 2002 and it’s essentially an ability to recover your wage loss, slightly better than what you’d get under the statutory system and you are entitled to recover it as a net figure all the way through until retirement age.
CS Okay Sean’s got a question for you. Sean. Go right ahead. Richard is listen.
Caller 1 – Sean
Sean Mate. About 5 years ago I had a workplace injury and at that time I was only working casual like three or four days a week – I was transferred from full time to casual because they were downsizing their business. Now I hurt my back pretty badly. It’s all recovered now but at the time my employer didn’t want to pay me any money out because he told me I was casual. I have since took some legal action against him and now he has actually paid me out my wages plus other things as the court asked him to pay for. I just want to let people know that just because you are casual doesn’t mean you can’t get any sort of cover – you can get it – you just have to work harder for it that’s all.
RD You are absolutely right.
CS What do you mean work harder for it?
Sean .Ah well I had to go through a lot more legal process than what I would have just been full time. I think they didn’t really want to pay because I was casual and like you are a casual – a few days a week no-one will pay you out but that……….
CS So let’s put that to Richard. What are the differences? He’s on casual. Why should it make a difference?
RD Well it shouldn’t.
CS And what about part time – it shouldn’t make a difference?
RD It shouldn’t make a difference. And it shouldn’t make a difference if you are on a working visa – you’re not an Australian Citizen or a permanent resident – but you are on a working visa – you still have an entitlement. The fact that you are casual and your employer gave you grief, unfortunately is a common thing – employers give grief but – understand this – that the employer isn’t paying out of their own pocket – Employers have insurers for this exact reason.
CS Yes – so they don’t need to be that stingy when they confront these issues. Peter – go right ahead.
Caller 2 – Peter
Peter Yes – Good afternoon
Peter My son was driving to work recently. Had a car accident – it was not his fault – now – in ………. claims – should he make a CTP claim or a workers compensation claim?
RD Well if he’s driving to work or from work, unfortunately in 2012, the Liberal Government abolished the journey claims – so you wouldn’t have a workers compensation claim there.
Peter Just to interrupt – I’m in Queensland sorry.
RD Oh ok. Well you’d probably need to get specialist advice from a Queensland lawyer. It is a different system up there altogether.
CS There have been major changes in New South Wales in the last 5 years in this area – hasn’t there?
RD In the last three years in particular. It has been devastating to workers’ rights.
CS You might want to get some understanding of what the laws might be in Queensland. There is a Turner Freeman office in Brisbane – you might want to look that up and see what you can find. Debra – go right ahead.
Caller 3 – Debra
Debra Hello there. Look – I’m quite astounded to find from our broker that anyone over 65 isn’t covered by workers compensation yet they are encouraging people to work over the age of 65.
RD It’s not as simple as that – they are still covered – so if someone is injured but they are over 65, their rights are limited to 12 months. So if you’re 70, still working and you injure yourself and it’s a devastating injury and you are off work for an extended period, you are only going to have coverage for 12 months and if – depending on the level of injury, you might only have an entitlement to medical expenses for another 2 or so years.
Debra That doesn’t seem very fair does it when you pay your workers compensation percentage of your total wages that they are expecting then – you might have been working until you were 95 but – well they are expecting you to go onto the pension then.
RD Exactly right. That was one of the big things in 2012 when they brought in these changes. The …………… was caused because ultimately everyone that’s kicked off the NSW Workers Compensation Scheme ends up on the Commonweal Disability Pension or a Newstart Allowance and on Medicare.
Debra Yes, yes. I just wanted to clarify it because our broker was saying you should write to your local member because nobody ever realises this.
RD Yeah. Absolutely. That’s probably the best way to do it.\
CS Yes it’s a point well made. Hey Debra. I can – I think we should give you a $100 Westfield Voucher because you’ve made some very good points about this and the fact that there’s still a liability against the tax payer for these claims so why not leave it in same bowl?
Debra Yes. Thank you so much. Look I just think it’s so unfair because if you were happy to be working for your $50 grand a year and you have an accident unfortunately for you – I’m sorry you can go on the pension anyway.
CS Yeah. Yeah. Debra well said. A $100 Westfield Voucher. Stay on line – I’ll put you through to Gabriella and we’ll make sure we get the $100 voucher to you. Good on you. 131 873. Something occurred to me as we were discussing with that previous caller about how difficult it was to deal with the employer because he was casual. If you’ve got a smaller company and they don’t quite know how to approach a workers compensation claim, what’s the advice to someone who’s hearing different things from different senior people of the business. Do you start getting a notebook and pen?
RD I think absolutely that’s one of the best ways to protect yourself is to keep a diary of what you have said to your employer – what notice you’ve given them – keep all the records of the doctor’s visits, the certificates.
CS Contemporaneous notes – account – yes right oh. Rowan – go ahead – Richard’s listening.
Caller 4 – Rowan
Rowan Yes – good afternoon Richard.
Rowan I’m just wondering I had a workers compensation claim with a company and due to circumstances was pretty much pushed out whilst I was still on workers comp. And I was able to go through my full term of rehabilitation – I was just wondering if there is anything else that I can do and it still hasn’t come right now.
RD The interesting thing that you mentioned there is that you were, I suppose terminated because of what happened following the injury…..
Rowan No – I chose to leave because basically it got to a point where you know I was unfairly treated at work where I just couldn’t keep going unless I went back to full duties you know.
RD Yes it’s a very common problem unfortunately. The law isn’t very helpful in this situation because an employer – I’ll rephrase that – if an employee is unfit for their pre-injury duties for a period of at least 6 months, then their employer is legally able to terminate their employment – there’s nothing we can really do about that. In saying that though, your workers compensation rights remain intact and you have that entitlement going forward.
Rowan Okay. So am I able to then pick up the claim again and get treated for it or not?
RD Absolutely. There’s no impact on your claim following the termination of your employment.
CS Okay that’s important to note. Richard. Go right ahead – I’ve only got a minute to go.
Caller 5 – Richard
CS Hi. We’re listening.
Richard Yeah – Look the question is, I’ve got a relative who was employed of a Commonwealth level – 17 years of service – was injured six years into it – when the person retired, 2 years after the Commonwealth terminated all treatment – it was only physio and some other stuff. That person took it to the AAT and because it was so biased against her, she withdraw. Is there anywhere else she could take the matter given – she was given an estimate of costing between $25,000 and $30,000?
RD Not really. If you’re unhappy with a decision it’s either you can take it further but if you have withdrawn from the AAT that’s the only real recourse for people that are injured and have a Commonwealth employer. I’m not sure exactly how it will resolve there if it was withdrawn then, she might want to think about putting it back in to the Tribunal.
CS Back into the Tribunal might be something to consider. I’ve run out of time but I thank you so much for yours Richard.
CS Richard Dababneh from Turner Freeman.