Richard Dababneh discussing workers compensation claims on 2GB

Tuesday, 27 August 2019

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SP – Steve Price / Richard Dababneh–   C1,2,3, etc – Callers 

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SP       Joining us on the line today, partner from Turner Freeman Lawyers Richard Dababneh. Richard good to talk to you again.

RD      G’day Steve.

SP       I’ve got friends who have youngsters working in construction, every time you hear a news headline about another onsite workplace tragedy like the one we had last week, the death of a tradie in Jordon’s Springs last week, parents of those young men just go oh my god where was it, what time did it happen, what sort of building site was it on. It happens far too often Richard doesn’t it.

RD      After I read this story about the young man who passed away last week falling from I think a height of 7 stories, I thought I would look into this a little bit further and what I discovered is that in fact falls from heights are responsible for the second most number of deaths on worksites in Australia.  So the first would be vehicle collisions, car accidents and the like but the second would be falls from heights. That’s just amazing. 14% of all deaths are caused by that. There is clearly something not going right with Worksafe around the country, NSW in particular I daresay.

SP       We had that scaffolding collapse didn’t we, a few weeks back or a month or so.

RD      And there was the young man that passed away, it was probably a few months ago now from a scaffolding incident as well on the jobsite in town, all of these things are preventable and it just doesn’t seem to be enough happening.

SP       Turner Freeman specialists in this area of law, compensation and negligence law, employment law, property law, we have a $100 Westfield voucher to give away if you have been through this yourselves with your own family or you’re going through this at the moment, taking on an employer in a legal matter, give Richard a call on 131873. How complex can workers compensation cases become?

RD      I suppose when it comes to a death if it’s a straight forward enough incident as it would be in a situation such as this man who fell from seven stories, um it’s actually quite simple, you don’t need to necessarily prove that the death was caused at work, it’s fairly evident, what happens thereafter is a matter of dealing with an insurance company and getting your entitlements. This is the family obviously getting their entitlements and those entitlements are threefold effectively. Funeral expenses would be the first thing that would come through. Unfortunately capped at $15,000 in NSW now.

SP       $15,000, that’s the top for death?

RD      Well that’s the funeral expenses so that involves coffins, burial plots, funeral director etc. As far as I am aware in terms of the costs of funerals, I daresay that wouldn’t even cover it. That aside, if the person who is passed has left dependent children the dependent children get access to a weekly payment and that’s managed by the next of kin or their mother or the father or the spouse of the deceased and then there is also a lump sum payment which is currently $810,000.

SP       131873 if you have been involved in a workers compensation case or you have a question for Richard, please give us a call on that number.  131873, we are talking workers compensation today. In a sense, it’s almost a bit callous to say this, if there is a workplace death it’s almost more straight forward than if you are claiming an injury, right?

RD      Yeah I think so.

SP       Awful to say but that’s a fact right?

RD      It’s a fact and it’s probably a good thing because it is the last thing that a grieving family needs to go through is constant arguments with insurance companies about the cause of death. I will say this though, there are fatalities, there are deaths which there could be arguments about, for example there are cases and I’ve got a case at the moment involving a young woman who passed away from drug overdose now that was prescription medication overdose and those prescription medications were given in response to a work related injury….

SP       Gee that’s complicated.

RD      Yes it can get complicated certainly situations where we are falling from heights, electrocutions and the like are a lot simpler than that and as I said the system is designed not to put any additional pressure on families grieving after the loss of a loved one.

SP       Joanne is on the line in Canberra. Hi Joanne.

C1       How are you going?

SP       Yes good thanks.

C1       I’ve been on workers compensation for two years in NSW, I fell backwards on a whipper snipper and both my rotator cuffs and bulging discs in my neck and in NSW, they don’t have to pay for anything, I’ve had to pay for surgery and I’ve had no help at home, like a couple of railings or anything to help me and of course I re-tore my rotator cuffs and stuff. What’s the go, what do we do?

RD      Sure that sounds like a very unusual situation. Sorry you mentioned the employer, did you mention the name of the employer there or did you say that you were working for….

C1       No an insurance company. It’s an insurance company I’m under.

SP       So Joanna, I think is saying were you working for an employer at the time or were you doing home maintenance?

C1       Yeah racehorses and I was just stepping out of a sand roll and I fell backwards onto and done my neck and both my shoulders and been off work ever since or made to go back to work and just done more damage.

SP       What’s your advice there Richard?

RD      Well there is a couple of things in that. Firstly if there is a dispute as to someone’s entitlement, the workers compensation insurer is obliged to provide a document, it’s called a Section 78 Notice, it’s a document which outlines the reason why they are not paying the entitlement or the workers compensation. That is the first step, if you’ve got that document you can come and see us, we can go through that document and work out what we have to do to then have that overturned. It may well be a review internally with the insurer but in most cases it actually involves going off to the workers compensation commission and having an argument with the insurer there and hopefully having it overturned.

SP       Ill get Joanne to hang on there and we might put her in touch, that might make sense. More calls for Richard Dababneh right after this.

SP       Talking about workplace accidents workers compensation with Richard Dababneh this afternoon. Richard we have Doug in Wagga on the line.  G’day Doug.

C2       How are you going Steve?

SP       Good mate, thank you. Go ahead.

C2       Richard, I’d like to know why the insurance companies of workers compensations claims to the maximum degree only give 19% incapacity because if they give them any more than 19% incapacity means they have to look after them for basically the rest of their life? Why is that? How does, it should be something done by the government to look into that, like a Royal Commission.

RD      You are absolutely right, the figures are actually 20%. If you are 20% or under then your entitlements to workers compensation cuts off whereas if you are 21% or greater than yeah your entitlements could potentially continue for a lot longer and potentially fall in terms of medical expenses for life. It is a problem, it was introduced in 2012.

SP       Is it legislated?

RD      It’s legislated. It was the liberal government as it was in 2012 introduced it and hasn’t changed obviously with the same government effectively in. The only way it is going to change, there has been a lot of backlash about this, but the only way it will change is if there is a change in government and the new government…

SP       Can you explain that to me? What does that mean when they limit you to 20%?

RD      So when you suffer an injury at work you can have an assessment done of what’s called your whole body or whole person impairment

SP       So your ability to work…

RD      Well it’s not only that, how the injury actually impacts on you physically and that percentage impairment determines you know whether you get pain and suffering compensation, whether or not you are able to sue your employer in negligence and also as Doug as just indicated, determines how long you get your entitlement.

SP       So how can the government possibly legislate to limit that at 20%.

RD      They introduced it at 20%, it doesn’t need to exist. Before 2012 it was a situation where you had your entitlements to medical expenses as long as you needed them, it wasn’t capped.

SP       So it was injury dependent?

RD      That’s correct. So and 20% is….

SP       That’s outrageous, I think Doug has raised a very good point.

RD      21% is a huge threshold, it is, we are talking a very small percentage of injured workers in this state would actually get to that level.

SP       Wow that does need further discussion. Thanks for raising that Doug.  Keep listening because I think we are going to pick you as our Westfield winner today with that $100 voucher. Barbara is in Canberra. G’day Barbara.

C3       Hi Steve, Hi Richard.

SP       You’ve got a more general legal question for Richard.

C3       Yes I was in a car accident on Friday, I was hit up the back of my car, it was a hit and a run, I reported it to the police, I went to the police and reported it and gave her rego number, they went around and seen her and she said that there was no damage. Now there wasn’t any damage to the back of my car, there is a little bit of petrol leak now the problem is my damage, I think I have whiplash and my partner has got a bad back and so have I and we are in a hell of a mess. I can’t even go to physio.

RD      Well you’ve done the right thing in raising it immediately. Now the first thing you need to do is speak to your doctor obviously but then you’ve got to lodge in a personal injury claim for the car accident, that goes against the CTP insurer for that motor vehicle, um if you are not sure who they are you can contact SIRA or the Motor Accidents Authority as it is in NSW and they will give you the details of the insurance company responsible and you basically send through a form which indicates or tells them that you have been injured as a result of the motor vehicle accident.

SP       Would you be going to a lawyer?

RD      Yes you certainly should. Get the advice and there is a whole stack of entitlements that flow from car accidents, medical expenses, weekly compensation if you are unable to work, and ultimately could be some pain and suffering compensation.

SP       Does that help you Barb?

C3       Yes thank you very much Steve.

SP       Good on you. No worries. Mary g’day how are you?

C4       Hi Steve.

SP       Go ahead Mary.

C4       Yes um look my sister had a fall at work, she was at a mandatory violence in the workforce seminar and she had a fall and she sustained two fractures in her upper arm and did her rotator cuff, cut a long story short she has had 18 months of therapy, hydrotherapy, OT everything and still hasn’t healed yet. She has just recently had surgery, she had a pin and plate in and bone grafts and they were telling her that she is not able to get any compensation, she is on workers compensation at the moment but she won’t ever be able to go back and do the work that she was originally employed for.

RD      The people that are telling her that she doesn’t have an ongoing entitlement are not correct. She might have an ongoing entitlement but this comes back to that percentage impairment situation so depending on the severity of the impairment or how high the impairment is, she might continue to get her medical expenses covered for a lot longer. It also raises a really interesting situation, injuries when not necessarily at work but when you are away from work on a work endorsed training program or the like,

SP       You are still at work right?

RD      Yes, and that’s….

SP       So if you go to a conference for example, and you trip over a mat and break your wrist, you’re at work.

RD      Yes well that’s the way that the law has interpreted the legislation so yes and that’s why she has been covered.

SP       What do you reckon Mary’s sister should do?

RD      Well I think she needs to come in and see, it’s a very intricate area of law number one but number two it’s very fact sensitive so we need to work out exactly what happened and then work out what further entitlements she might be entitled to.

SP       You hang on there Mary, we will make sure we get contact details for Turner Freeman of course Turner Freeman operate on these cases on a no pay no win basis. Can I just ask you Richard, how often do you find in your practice that employers are under insured?

RD      Impossible actually in NSW, You can’t actually be underinsured for workers compensation. So long as there is insurance, the injured employee would have coverage. There are cases where employers do not have insurance, but there is still a fall back system in place where Workcover or it’s called SIRA now has a fund which they can go to pay the liabilities of these uninsured employers. If they use that fund and the SIRA actually has the ability to go after the employer who was uninsured and try to recover it directly from that person or that company but the injured worker will not be at a loss.

SP       It’s certainly a complex area of the law. Always a pleasure to catch up with you mate. Ill talk to you soon.

RD      Thank you.

SP       Richard Dababneh partner at Turner Freeman Lawyers, that $100 voucher goes to Doug of course who called us from Wagga. Turner Freeman Lawyers joins us every Tuesday afternoon to talk legal matters. We will have another Turner Freeman partners back with us same time next week.