Richard Dababneh providing Q & A discussing commonwealth compensation

Tuesday, 10 September 2019 

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

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Listen to the podcast

Read the transcript below:

SP       Good afternoon, very happy to have Turner Freeman back with us. Now what happens if you are in need of compensation but your employer turns you away and that employer happens to be the Commonwealth Government that could be awkward. Workers Compensation as we know is a very complex topic but thankfully we are joined by one of the partners from Turner Freeman, Richard Dababneh is with us this afternoon. Good to talk to you Richard.

RD      Nice to speak to you Steve.

SP       And as always we have a $100 Westfield voucher to give away to the best caller who asks the best question on our legal matters segment this afternoon and of course Turner Freeman Lawyers provide a range of specialised legal services. Richard what we are going to talk about today is complex compensation but it gets more complex I guess if you are employed by the Federal Government.

RD      Absolutely, it is interestingly the most complex jurisdictions one of the complex areas of law in the country so every state has its own state based workers compensation scheme and there is a federal scheme which covers employees of the Commonwealth Government and also there is some self-insurance that is available to some licence holders, national companies such as Telstra, Australia Post, some of the big four banks, logistic providers, the big TNTs, Linfox’s and things like that and they are covered by a scheme called Comcare which is a very complex and very unusual scheme, has a very different way that it is managed and a very different way which disputes are dealt with.

SP       And it would be very daunting for an individual to go up against someone like the Commonwealth Government if they thought that they were due compensation, you just couldn’t do it on your own.

RD      Absolutely, whereas in other jurisdictions where you have state based insurers who are privately funded, the Commonwealth Government is a very big entity if I can put it that way, has a lot of resources and often you find at Comcare, the agent that manages this for the government, spends a lot of money fighting these cases.

SP       Who are we looking to hear from this afternoon and what sort of questions could we expect to be answered for our $100 Westfield voucher?

RD      You’ve got people who are employed by companies that are covered by the Comcare scheme so as I mentioned a few of those that some of the big banks, the CBA.

SP       Armed forces, the Navy.

RD      Armed forces, Navy, Defence personnel, that’s a slightly different scheme.

SP       PTSD?

RD      So there was an article I read just the other day in fact about a firefighter from Canberra. So there are some people in Canberra who are covered by Comcare and some that are covered by the ACT Workers Compensation Scheme but this particular person had a very serious PTSD post traumatic stress disorder and was prescribed a what is called a mind dog or psychiatric assistance animal and obviously went out on the recommendation of his doctors and purchased a dog and tried to have that the cost of that and the cost of maintenance of that animal and the registration and food etc covered by Comcare and it was rejected. On appeal to the Administrative Appeals Tribunal it was rejected again because of the deficiencies in the Act. The Safety Rehabilitation and Compensation Act which is the Act that governs this area, it doesn’t allow for things such as that whereas in other jurisdictions NSW Workers Comp and other states, it’s quite common for this type of treatment to be covered so it’s a very unfortunate situation for this man and this happens with people in Defence force personnel who have been putting claims all the time as well.

SP       It’s very common, 131873 is that number if you have worked for a government agency and you have had to apply for compensation and gone through one of these battles, give us a call. Likewise if you are in the middle of seeking compensation and you believe that you are due that compensation we would love to hear from you as well. Try to explain it as simply as possible if you can and you can pick up for yourself a $100 Westfield voucher today to use as you wish. What’s another example of a case that Turner Freeman have looked after?

RD      The cases that come to us are obviously ones that are disputed in most cases anyway, I suppose as a general rule they are all a little bit interesting otherwise their wouldn’t be a dispute there. I suppose what I could say is under the Act there is a whole range of different things that you can claim for including permanent impairment compensation which is the equivalent of your pain and suffering compensation and sometimes that generates some dispute so obviously Comcare would suggest that if someone’s impairment isn’t as high as what they think it might be or the injured think it might be, it follows on from there that there is a dispute about the injury and the cause of the injury, the extent of the injury and permanent impairment that flows from it. This man’s case is interesting in that this is a treatment expense, it is a medical expense which, if it was a straight forward

SP       Like a drug or something it wouldn’t be a problem.

RD      Exactly right. If it was a knee injury and it required a knee operation there wouldn’t be a problem but with psychiatric injuries it is always a little bit grey, what is reasonable treatment for a psychiatric injury other than for example seeing a psychiatrist?

SP       He fought a very serious factory fire, I think that’s what caused his injury in the first place.

RD      No doubt there would have been many episodes along the way in his career of a firefighter where he would have been exposed to traumatic events which would have led to something like this and you know if his doctors are suggesting that this is a treatment that is therapeutic that will assist him get through his day, his life, then on all accounts I think it should be accepted and I think if you read the article and read the decision the tribunal member who in fact decided this case, I think there is a problem here with the law. I can’t find in your favour because the law doesn’t allow me to but parliament hasn’t seen fit to make provision for this in the Act.

SP       Calls for Richard on 131873 straight after this. Talking compensation today particularly in regard to the Federal agencies, Richard Dababneh is in the studio with us and Anthony is online on the South Coast. G’day Anthony.

C1       Good afternoon gentlemen.

SP       What’s your story?

C1       Um I worked for Australia Post from the late 60s to the late 80s originally PNG. I had a problem with my tailbone and my doctor took me off the bike, originally they said I was either fit for work or I wasn’t and sent me home. This went on for about 4 years then at Christmas time they created a position for me to help keep the overtime down which they said my decision was reliant on that and come June the following year they told me that if I didn’t get a clearance that I would be redeployed, so I applied for the mail centre in Newcastle then that fell through and in the end I ended up resigning and then Centrelink sent me to see a lawyer. They told me that under the federal award I wasn’t entitled to any money whatsoever yet if I worked for the state government I would have been guaranteed $30,000 in pain and suffering but the federal government doesn’t recognise it.

SP       Well that’s the difference Richard isn’t it.

RD      Absolutely. Huge difference between the state and the federal scheme. It is a little bit hard I suppose in that situation and that happens a lot, you know there are people who are injured, they try to get themselves back into work, they retrain, whatever it might be and it’s still not good enough for these companies, Australia Post is one that we see all the time.

SP       And all workers need to be mindful of the fact that you are not all on equal awards. Martin is in Brisbane, hello Martin.

C2       G’day how are you Steve?

SP       Well mate. Thank you.

C2       G’day Richard.

RD      G’day Martin.

C2       Look I was in the military for about 20 years, I was discharged due to PTSD depression, all those sorts of things and I received a totally and permanently incapacitated pension through the Department of Veterans Affairs and also an invalidity payment through Comsuper. Recently I have become aware that I was able to claim my superannuation based on or apply for early release based on invalidity and I did that shortly after my estranged moved back in for a short period of time, she has moved out again but she is sort of claiming that she is going to try and take the money that I was paid out in superannuation. My understanding was that there was a federal court ruling that is actually an insurance payment rather than a superannuation payment and on those grounds she wouldn’t be entitled to that. Is that correct?

SP       We are straying into marriage law here I guess are we Martin?

RD      We are certainly in the family law sphere and I’m not going to say that I am an expert in family law but my understanding Martin is that if that is something that has been paid as a pension and it may well form part of the assets of the relationship and it might be divvied up but you certainly need to speak to a specialist family lawyer to put it all together.

SP       Have you spoken to a lawyer about it Martin?

C2       No I haven’t at this stage. I’ve had millions of lawyers in the past. It scares me.

SP       We hear what you are saying but Richard from a family law point of view, the assets are all put in a pot and divvied up equally but Martin may have some argument there. Is Turner Freeman got anyone who could help out in the family law office?

RD      No, it is not an area that we practice in but if you do call through to me I can certainly give you a recommendation for good family lawyers that would be local to you.

SP       Hang on there Martin and we will get you a number, no problem with that. Let’s talk to Ray in Springwood. G’day Ray.

C3       Good afternoon gentlemen. My situation was my wife was her mother’s carer through Centrelink and she crushed her vertebrae lifting her and ended up with cages being put in her neck and all this business which didn’t work and she is now just been stuck off on a disability support pension and you’ve apparently got no comeback even though you were being paid by Centrestink as I call them, as an employee to look after the person, when something goes wrong they just wipe their hands of you and say you can’t sue Centrelink.

RD      Yeah that’s a tough one mate but unfortunately as much as I don’t like to say it, I think Centrelink have probably got it right there. Whilst that relationship is as a carer it’s not a relationship which extends to an employment relationship with Centrelink where Centrelink would therefore have a duty of care to your mother in law or your wife, that’s a tough one for you, you will have to find another way to get that treatment covered.

SP       Alright Ray thank you for that. Robert is on the line, how are you?

C4       G’day. My wife worked for the NSW State Government and actually had a mental breakdown in the workplace and she was on the workers compensation system from 2004. The NSW government changed the workers compensation legislation and actually made it retrospective and is that normal because that wiped out because she went back to work and was not seeking a payout, she had only been covered for her medical expenses and treatment. Her employer actually declined to provide her with alternate duties and basically told her to go away and find a job elsewhere, they never sacked her.

SP       Were you aware of that retrospectivity Richard?

RD      Absolutely. In 2012 it all came in mate and they changed the system on its head and they made it retrospective so it applied to anyone. If you were injured in 1990 or anytime after 1987, in fact when the Workers Compensation Act came in up until that point you were transitioned onto this new system and you were told that whilst you might have thought you had coverage for life, it’s now been chopped off and your coverage will be x y or z depending on some facts.

SP       It doesn’t sound very fair.

RD      It was very unfair at the time and still very unfair. The system now in NSW in terms of entitlements to injured people, injured workers, it is one of the worst in the country.

SP       It’s a bad example. Thank you Robert. Debbie is online. G’day how are you Debbie?

C5       Thanks for taking the time to listen to me. I have been employed in a high school since 1999 so 22 years and an incident happened on the 10^th of March 2017 I have been on leave since. From that incident I’m under psychologists, I’ve had lots of testing done, I do have an impairment at the moment which is a lot of anger I still have inside me, I suffer the anxiety and depression very bad, I just come out of that hole I call it. I have thrown myself into fundraising for the RSPA, I love animals so I’m doing that.

SP       So have you made a claim against the employer?

C5       Not as yet. My insurer is…..

SP       Is that something you can help with Richard?

RD      Certainly something we could help with and I suppose the first bit of advice you need is, if this was a 2017 injury you know you need to do this straight away, there are time limits which apply to lodge a claim. Your claim, is it a NSW high school?

C5       It is a NSW but I’m in the process of, I had transfers in and they were from years ago now the director, it’s in her hands now, she has only been a director there for the last 18 months I’m aware of so she wouldn’t know half of the incidents but it would all be on record everywhere. Now she is actually trying to find me a placement which I’m so happy because now that I have my voice back and like I said, I just want to get out there and socialise.

SP       Good on you.

C5       Do all that again.

SP       So you are able now and willing to get back into the workforce?

C5       I’ve got capacity to work that’s why my insurer have stopped paying me but they are still going to be paying for my psychologist appointments. They are going to cover that for the next two years I believe, they have been very supportive.

SP       That’s a good news story Debbie. Thank you, I think we might give the $100 voucher to Debbie so she can go along to Westfield. What do you reckon?

RD      Absolutely.

SP       Richard, thank you very much for joining us today, I look forward to talking to someone from Turner Freeman next week.

RD      My pleasure.

SP       Richard Dababneh from Turner Freeman.