Richard Dababneh discussing the NSW Workers Compensation Scheme on 2GB

Tuesday, 4 June 2019

 

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CS– Chris Smith / Richard Dababneh–   C1,2,3, etc – Callers 

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CS       When I think about workplace injuries I tend to think about high risk environments like construction sites but it can happen to anyone even 9 to 5 office workers and that’s exactly what has happened to one NSW woman. Five years ago Mariana Kensi completely tore apart her disc while carrying bulky suitcases full of promotional products to a work conference. Now normally these materials would have been shipped prior to her arrival, as a result she has been left with incomplete paraplegia and will never work again, but that’s not the end of her concerns because she is battling with the NSW Workers Compensation Scheme. We will unpack this case in our legal matters segment today.  Once again I’ve got a $100 Westfield voucher to one of our callers and as you know Turner Freeman Lawyers 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 as well. Their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and their QLD offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.  Now Richard Dababneh is an accredited specialist in personal injury law. If you’ve got a question on the subject of personal injury, maybe you’re in the middle of a very delicate case involving your workplace or the workers compensation scheme, give us a call right now 131873. Not only for advice, but maybe just the process you’ve been through could be a lesson for other people who might find themselves in that situation down the track. Always great to hear from people who have been through the system or are about to go through the system. Now Richard Dababneh is a partner at Turner Freeman’s Parramatta office and he joins me right now. Richard, thank you very much for your time.

RD      Good afternoon.

CS       I mentioned earlier that people tend to associate work place injuries with high risk environments but this incident happened to an office worker. How often do you see workers compensation cases not involving some labour intensive sector like the construction sector but involving office workers?

RD      All the time. There’s really no discrimination, there’s people who go out to work every single day in fairly sort of non labour intensive positions and get injured. It just happens.

CS       So for example they get injured having to carry things that wouldn’t normally be the case, what other things occur to people in the office?

RD      One of the biggest things at the moment is bullying and harassment, psychological injuries. They are very prevalent at the moment, they’ve been prevalent for many years now and there is a lack of response from the higher authorities to address those issues.

CS       So an individual who might go to their workplace and lodge a complaint of bullying and try and get some recompense through their workplace could also get recompense for the same reason through the NSW Workers Compensation Scheme.

RD      Absolutely. Psychological injuries are treated in exactly the same way as physical injuries in NSW and every jurisdiction throughout Australia including the Commonwealth.

CS       What you may get from an employer doesn’t exclude you from obtaining benefit by the compensations scheme?

RD      Employment entitlements are distinct from workers compensation entitlements so yes you can have your workers compensation entitlements as your other leave entitlements paid out to you.

CS       131873 the telephone number if you want some advice from Richard Dababneh or want to talk about personal injury law. Mariana’s case.  Mariana is not having any issues actually receiving workers compensation, but it’s the way the compensation is administered that is causing problems. Explain this to us.

RD      When I read about Mariana’s case I thought this is really interesting, it’s actually something that affects a lot of people. Unfortunately in NSW and in a couple of other jurisdictions around the country, the only entitlement a worker has when they bring a common law claim, a damages claim is for their wage loss, so in Mariana’s case, someone who has an extensive requirement for treatment, being compensated just for your wage loss won’t actually cut it and it means you can’t effectively leave the scheme.

CS       What do you mean you can’t effectively leave the scheme?….

RD      So when you run a damages claim and you are successful in that claim, you stop getting your statutory entitlements and you get paid a lump sum to cover your wage loss for the rest of your working life. So in her case, that’s just not worth it, the unfortunate thing in NSW is you don’t get paid for your future treatment expenses, once you are out of the scheme you are out of the scheme and that’s it.

CS       So this workers compensation scheme is called icare. How does it work out how much compensation the injured worker is entitled to?

RD      In terms of damages it is restricted purely to their economic loss, so what they were earning at the time of their injury is probably the starting position, you can project that going forward till retirement age.

CS       I want to get back to this because it is fascinating but I want to take a call and for those who want to obtain some advice from Richard go for it right now. 131873.  Margaret is on the line, Margaret go ahead, Richard is listening.

C1       Good morning gentlemen. I had a case going here for Woolworths, I fell over inside their shop and it was over a bollard they had there in 2007 but it had been taken away, but the screw was still up out of the ground. Now I’m suffering injury because of that, I’ve got to pay physio and I might have to have a knee reconstruction. The solicitor wrote back to me and said I’m sorry there is nothing I can do for you because it was gone in 2005 and when the accident happened they cut the screws straight off.

RD      The issue in that case, well in your case seems to be that this happened in 2007.

C1       No this happened 6 months ago.

RD      Oh ok, well I can’t see….

C1       Yeah but they took away the bollard at 2005 so they didn’t take the screw away but I had a very bad fall.

RD      Sure, well we have a case exactly on that point at the moment where they have taken out the bollard and they have left the screw hanging and someone has tripped on it.  I can’t see the issue in that.

C1       Margaret you’ve got a case.

RD      It certainly sounds like it.

C1       He said that because they cut the screw off straight away when I had the fall.

CS       Who said that, who said that?

C1       The solicitor.

RD      That sounds to be proof that they’ve acknowledged that they had a problem there.

C1       That’s right, that’s right and they are guilty of it. That’s what I find.

CS       Well Margaret you need to speak with Richard probably privately and he has had a similar case, I don’t know whether he has had success with that case but there is a case to be had and you need to take it further.

C1       Can I have a number for that please?

CS       You sure can Margaret. Stay right there. Just before we let you go back to the switch, your injuries, what have your injuries been?

C1       My neck, um my back, my knees, I might need a reconstruction to my knees, and I’m having a job to get around and I’m 68 years old. I was working until this happened and now I’m on a pension.

RD      That is very serious. The difference between this type of claim against Woolworths which would be a public liability type claim, and the workers compensation claim that Ms Kensi is involved in is, with this claim you can actually claim not only your economic loss but also your treatment expenses for future, domestic assistance and everything else, so that is where the disparity is and that is why there is a problem with the NSW workers compensation scheme and a lot of other schemes throughout the country.

CS       Margaret, I am going to give you the $100 Westfield voucher.

C1       Oh thank you, thank you so much.

CS       It is just a consolation. Margaret stay there and we will put you through to Hansel and we will make sure that you are in contact with Richard Dababneh and you have a case identical to that one?

RD      Almost identical, not against Woolworths but a different entity but yeah exactly the same. They removed a bollard and left the bolt sticking out of the ground.

CS       Wow. Brandon go right ahead.

C2       Hi, how are you going?

CS       Good thank you Brandon. Richard is listening.

C2       Just, I will try to be as quick as I can, basically I am actually on the icare thing workers compensation. I worked in construction as an operator and I actually below out my knee and I had to give them my estimated income, well I gave them my payslips and stuff and basically I used to clear about $2500 to $3000 a week. I know it’s a lot of money but I earned it, I would do 80-90 hours a week but they capped it off at gross as $2100 so I’m basically getting about $1500 a week and so every week that I am on this, I am basically losing a $1000 minimum and what I wanted to know was, I mean I don’t agree with that firstly but I what I wanted to know is whether I could get some part time work somewhere that doesn’t interfere with my injury.  Would I be allowed to earn extra money and it doesn’t affect the $1500 I’m getting?

CS       Good question.

RD      Very good question. You are in fact encouraged to go out and try and work and earn some money. That cap you are referring to applies to everyone unfortunately, it is the cap as to how much the insurance company has to pay, not the cap as to how much you are entitled to. You could earn a few hundred dollars a week and it shouldn’t impact on the $1500 you are receiving now or in fact it should be a little bit more than that.

CS       So it doesn’t necessarily mean that there is a type of work he can’t take?

RD      That becomes a medical question really as to what your restrictions are and whether you would be exposing yourself to further injury in the event that you did take on other type of work.  It’s something that the doctor needs to speak to him about.

CS       Brandon?

C2       Excellent. That’s the thing, I can get a job where I’m basically sitting down all day you know and it will get me back into the workforce and earn a bit of extra money you know.

CS       All the best.

C2       Thank you very much.

CS       All the best Brandon. Thank you very much for that.  Back to Mariana. Could Mariana potentially sue her employers for her injuries and get them to cover the cost of buying say a new home irrespective of what goes on with the workers compensation scheme?

RD      Unfortunately not no, her negligence claim against her employer is governed by the workers compensation legislation and that imposes that restriction to the damages being calculated by reference only to economic loss and that cap that Brandon was just talking about, that still applies as well. So if you are a neurosurgeon earning thousands of dollars per week and you’re injured, too bad for you. The cap is about $2100 gross so once you actually do the calculations of your economic loss, it is substantially less than what you would actually be entitled to if for example you injured yourself in another way and had entitlements under a different act.

CS       I’m with you. There seems to be another rung of review of workers compensation act in NSW however that’s a discussion for another day.  Richard Dababneh thank you so much for your time this afternoon.

RD      Sure.

CS       Richard Dababneh accredited specialist in personal injury law at Turner Freeman Lawyers. Their number 134363.