Richard Dababneh providing Q & A on 2GB on workers compensation for government employees
Richard Dababneh providing Q & A on the 2GB Steve Price Afternoon Show discussing "workers compensation for government employees" 8 October 2019
Tuesday, 8 October 2019
SP – Steve Price / RD – Richard Dababneh– C1,2,3, etc – Callers
SP Tuesday afternoon it is always great to catch up with our friends from Turner Freeman Lawyers, Richard Dababneh is back with us, of course he is an expert in the area of compensation. We are talking workers compensation today and in particular workers compensation where you are a government employee. As always we have a $100 Westfield voucher to vie away to the caller who asks the best question in our legal matters segment. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, employment law and property law. Richard good afternoon, good to talk to you again.
RD G’day Steve. Good.
SP Wouldn’t want to go through a compensation case, I imagine it is very straining mentally and it would take a long time. What sort of compensation are we talking about today?
RD So the Commonwealth Compensation Scheme is managed by an organisation called Comcare and they administer the weekly compensation, the medical expenses and the like, now what we have noticed over the last couple of years is that there are increasing attempts by Comcare to try and recoup payments made to injured workers where they have subsequently made a determination that the injured worker doesn’t have entitlement so they have agreed at the start that there is an injury, there is compensation to be paid, that compensation has been given to the worker and then seeks 12, 18 months later a determination is made to reverse that and they have tried to recoup the previous payments. It’s been used by Comcare in what has been described as unconscionable ways. Effectively it just puts pressure on these injured workers to walk away from these determinations made against their entitlements for fear of speaking up or continuing with the case.
SP So Comcare covers armed forces, commonwealth government departments, commonwealth people like Telstra and Australia Post is that right?
RD Yes that’s exactly right.
SP 131873. If you are going through a compensation case and you need some assistance or some guidance from Richard Dababneh you can call us, we will give you a $100 Westfield voucher to the best caller of the day so who do we need to hear from today?
RD I suppose anyone that has received one of these letters where Comcare has written to them saying there is a possibility of debt recovery action against you if you effectively continue with the case or even if you don’t continue with the case that’s still sort of hovers over the injured persons head. It’s a scary thought if you think about it. You’ve received compensation under an apprehension that your claim has been accepted only to have it disputed and the money trying to be recovered from you.
SP Why do we have two different systems? State and Commonwealth?
RD Well, different laws, it is a very good question because there is a lot of discussion about trying to uniform it in a way so that it is not as complicated as it currently is but every state and territory has its own individual system and then you’ve got a federal system which deals with the government employees of the commonwealth government.
SP So you’ve got commonwealth legislation and then you have the NSW workers compensation act, do they treat the same injuries differently?
RD They do absolutely.
SP How can that be possible? You know I’m exaggerating here but you lose a hand, it’s a lost hand, doesn’t matter where you are working.
RD I suppose a lost hand is a little bit different but the entitlement that flows from losing the hand can be different in the state and compared to the commonwealth but there are some injuries which are treated very differently, psychological injuries is a big one, under the federal system very difficult cases, easy defences for those employers obviously the government to raise to effectively disprove the injured workers version or to avoid paying compensation.
SP Well that wouldn’t particularly apply, I mean if you are talking about PTSD in the armed forces, I mean I would have thought that would have been made easy and not harder.
RD Armed forces maybe not, it’s more relevant to public servants in departments and things like that who are subject to bullying and harassment.
SP 131873 is that number. John is online, G’day John.
C1 Hello, thank you for taking my call. Why I was ringing it concerns just superannuation, when you put in for workers comp whether your employer, if you win the case and something happened that as a result of the work that’s there, I was dumbfounded to find out that the employer doesn’t necessarily have to pay the superannuation during the life of the time that you are out of work.
RD It is a terrible situation.
C1 Is that correct?
RD Unfortunately it is correct, not only on a commonwealth level but also on a state level so if you are out of work, if you are not physically at work working and earning remuneration for that work then no there is no obligation they pay superannuation.
C1 It’s just one of my staff and I had to advise them and I said, well I would have assumed that the accident occurred because of a work related incident, that they be covered for the whole lot but in fact they found out that 6 months into it that they weren’t covered at all for that and they were dumbfounded and didn’t realise that they should have been continuing to pay it, they had to top it up and pay for it themselves.
RD You can sometimes recover it through a common law claim damages claim but again every state is different and it wouldn’t necessarily be relevant in a commonwealth jurisdiction. The other thing that doesn’t accrue and a lot of people don’t understand that, if you are not actually at work because you are injured, your leave entitlements.
C1 Well that was the next thing I was going to say is that their leave entitlements as well didn’t accrue and you would think that if something happened because something fell on them at work and no fault on their part, that they would be covered for everything but to find out that they are not covered for those two things, I thought myself if that happened to me I would be a bit worried as well.
SP Alright John, good on you. Thank you for that. We are taking calls with Richard Dababneh, partner with Turner Freeman. We are talking compensation, if you have been through a case or you’re struggling to get a case heard and you have got queries and questions, Richard’s the man, he will be able to answer that for you. More calls in a moment. Best caller of the day of course a $100 Westfield voucher.
SP Richard Dababneh is with us. Can you give us an example of where Comcare hasn’t done exactly the right thing?
RD Steve, I will be here all day.
SP Or a few.
RD There are some cases where I suppose disputes involving relatively minor injuries where the costs to the Comcare scheme would not be a significant cost have been disputed and they have.
SP So they drag you through the courts?
RD They drag people through it and they do not try and resolve it, you know they are required being a government I suppose department if I can call it that, to be model litigants but they don’t always act that way. I heard a case where they took a matter to trial where they spent $450,000 on their own legal costs just before the trial started then they changed their mind and accepted the claim but after $450,000 worth of legal costs had been spent so you know things like that happen all the time.
SP Kim is in Glenorie. How are you Kim?
C2 Good mate, good. Well not so good but anyway but I’m going through one of the situations at the moment where I have got a quarter of my left side of the brain missing through a construction accident. Gone through WorkCover and WorkCover are very, they are hopeless, they now put me in a situation where they say I am stable and they want to from me. What do I do?
RD What state are you in?
C2 It changes all the time.
SP No which state. Where do you live though?
RD Sorry I’m not familiar with that, is that in QLD?
SP Glenorie in NSW.
RD Oh ok. So in the NSW scheme there is a system in place where you can come and speak to a lawyer completely free of charge, there is legal funding if you have a dispute with Workcover about any of your entitlements and that will be completely covered. In a situation like that, you should really get on the phone and give us a call, make an appointment to see one of our lawyers in one of the offices and we can give you some specific advice about what you can do about this specific issue you have with Workcover. It is a bit hard to give you some general advice about it.
SP Hang on there Kim and we will put you in touch with Turner Freeman as we are told by Richard it is a free service. Albert is on line, G’day Albert.
C3 Hello how are you?
SP Good thanks Albert.
C3 I’ve got a question here. I was involved in a motor vehicle accident it’s a third party claim and from driver. Now I have a fair bit of injuries and a lot of time off work but cut a long story short, three and a half years later after having gone through all of the required medical examinations and cross references with everything else that needed to be done to qualify the claim, they calculated that the loss of earnings and the injury cost came to just under $700,000. We then went to mediation conference with the solicitors of the insurance company and they offered me $20,000. Now what I need to know is how can it be that we have a legal system of motor vehicle accidents that you have to follow so strictly for such a long period of time and yet when it comes to the actual negotiation at the end where they are talking calculations according to their requirements and their conditions and terms that the amount is nearly $700,000 and yet they can completely disregard that and say ok we will offer you $20,000.
RD It’s a good question.
C3 You have got to be joking, there is not a chance that I am going to take $20,000, why the hell would I do that?
RD Sure. Albert.
C3 Their response was that $20,000 was a lot of money to some people.
RD Well that might be right but not people that I suppose have suffered serious injuries like you have Albert. This happens in every single case, don’t take it personally, we are dealing with insurance companies, we are dealing with multi national organisations who make a lot of money selling insurance products to employers of various organisation and then make their money out of not paying out on those polices.
SP And making it tough for you.
RD They make it very tough. Now there might well be people out there that will accept the $20,000 because they are in a financial situation where they can’t afford for it to continue to go on, they don’t have lawyers who act on a No Win No Fee basis like we do, they don’t have lawyers who know how to instruct or to advise on what the value on what a case might in fact be. In that situation you have the right to say, thank you for your $20,000 see ya later and turn around and walk out of that mediation and run your case. That’s what needs to happen in a case like that.
SP And is that what your advice would be without knowing the full details.
SP So Albert what do you make of that?
C3 Well the problem is I have legal representation the whole time, the thing was I honestly felt like I was honestly set up. This was an agreement that was already made between these two legal firms. That is exactly how it looked to me because I couldn’t believe that, I did what you’re saying, I stood up and said I’m leaving, this is just not going to happen. Something not right here and they insisted that I sit down and said look this is just the early stages of negotiation.
SP What do you think there Richard?
RP If the solicitors are recommending that you accept the $20,000 then I would be a bit concerned by that and be saying to you that maybe you need to get another opinion on that but look if they are saying that it is the first offer from the insurance company just let it go and these things happen, it does happen quite a bit and they do low ball.
SP What would you advise?
RD If you want to get another opinion on it if this is still happening, this case is still continuing with you if you want to give us a call, I’m happy to go through it and take a bit more information from you and give you some proper advice on it.
SP You hang on there Albert, we will make sure we put you in touch. Richard it’s always a pleasure to catch up with you mate, talk to you again soon.
RD Thank you.
SP Richard Dababneh, partner at Turner Freeman. 131873 is our number.