icare in the news again

 Many of our clients have recently received a letter from icare informing them that their weekly Workers Compensation payments may be incorrect.  This is an unsettling letter to receive.

icare has found instances where Workers Compensation Insurers have calculated weekly payments incorrectly as early as October 2012.  The potential underpayments have been uncovered as part of an Independent Review Report into icare that was handed down in April 2021.  Injured workers could be owed thousands, or even hundreds of thousands of dollars in arrears of payments.

If you receive this letter, it is important you obtain legal advice to determine whether you should apply for a reassessment of your weekly benefits.  If an assessment takes place and icare determine you have not been underpaid, your weekly payments will not change.  However, if an assessment takes place and icare determine you have been overpaid, your ongoing weekly payments could be reduced to the correct, lesser, amount.

An icare spokesperson has said “As at 30 July 2021, icare has reassessed some 8604 eligible claims from across NSW.  A total of 281 workers have found to have been underpaid a total of just over $3 million in weekly benefits.”  It may, literally, pay to take action.

As an injured worker you are entitled to be advised by Toby Tancred or Melissa Arndell.  The Independent Review Office (IRO) can assist by providing funding for this legal advice.  IRO provides funding to approved Solicitors to investigate claims, provide advice to you as an injured worker, and deal with employers and insurers on your behalf.  Toby Tancred and Melissa Arndell are IRO Approved Lawyers.  Toby Tancred is a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running.  Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm.  Toby Tancred and his team have the experience, knowledge and ability to help all injured workers in difficult times.

The great (jab) debate

 On 5 August 2021, food manufacturer SPC, became the first Australian company to mandate that its staff be vaccinated against COVID-19, announcing that staff not vaccinated by November 2021 will be banned from entering any of its locations.

In New South Wales, employers have a duty under the Work Health and Safety Act 2011 to “eliminate risks to health and safety, so far as is reasonably practicable” or “minimise those risks so far as is reasonably practicable.” Arguably this extends to mandating vaccinations.

The Fair Work Commission has considered the issue. In one case it decided that the dismissal of a receptionist at an aged care facility was not unfair in circumstances where she refused to obtain a flu vaccination. The Commission determined the employer was within its rights to dismiss the employee given she had failed to follow a lawful and reasonable direction from her employer. Similarly, in Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156, the Commission upheld an employer’s decision to dismiss an early childcare educator who refused to obtain a flu vaccination on the basis she had a “sensitive immune system”, a contention that was not supported by the medical evidence. Most recently, in Glover v Ozcare [2021] FWC 2989, the Commission determined a Home Care Assistant was validly dismissed for refusing a flu vaccination due to a previous “adverse reaction”, a claim unsupported by medical evidence. Commissioner Hunt found the mandatory vaccination was a “lawful requirement for continued employment” with the employer. In each case, the Commission determined that the employee could not perform the inherent duties of their role safely, without being vaccinated.

Whether an employer can require an employee to be vaccinated against COVID-19 will be fact sensitive and will require an analysis of whether the direction is lawful and reasonable. For example, workers who directly engage and interact with vulnerable people, such as aged care workers, can probably be directed to vaccinate – absent some exceptional personal circumstance. On the other hand, an employee who has minimal contact with other people because they work from home or in low contact environs, can probably argue that the risk of them infecting others, or becoming infected themself is low – and therefore a requirement that they vaccinate would not be reasonable. It is probably only a matter of time before the issue is directly considered by the Fair Work Commission or another Court and we will continue to monitor developments.

If you have sustained an injury, Toby Tancred and Melissa Arndell can help. They can provide you with legal advice, investigate your matter and represent you if you need to commence legal proceedings. Toby Tancred is a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and Melissa Arndell have the experience, knowledge and ability to help all injured people in difficult times.

The standard of care owed by Councils to pedestrians

A Council owes pedestrians walking in public spaces a duty. The standard of that duty acknowledges that people walking outdoors should keep a proper lookout to detect and avoid imperfections in a surface. The standard of care acknowledges that it is in the nature of walking outdoors that the ground may not be as even, flat or smooth as other surfaces. Pedestrians are ordinarily required to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards such as uneven paving, stones, tree roots or holes.

The New South Wales Court of Appeal recently heard an Appeal in a claim for damages brought by a pedestrian against a large Council. The injured person was employed as a disability support worker. He was with one of his clients who wanted to use a public toilet. He fell on the first of three steps on a stepped pathway that lead down to the public toilet building. The trial Judge found that the risk of injury posed by the stepped pathway was not one that would have been obvious to a reasonable person. The trial judge had regard to the fact that the pathway led to a toilet block that included a disabled toilet and a reasonable person would not expect such a pathway to involve steps that were not otherwise clearly delineated. The trial Judge also had regard to shading that was present over the steps, and the absence of indicators that were present in other areas of the park to alert a person to the presence of the steps.

The Council appealed. On appeal, Council argued that the injured person was negligent because, rather than looking down as he approached the step, he made an assumption that the path had no steps. Council argued that the injured person looked at the path, kept walking towards it and then began to look at the public toilet building. He didn’t look at the pavers once he got close enough to discern the steps. It was argued by Council on that basis that the injured person’s own evidence demonstrated that he did not do what a reasonable person would do, which was “to continue to monitor, not look at your feet only, not stare fixedly at the ground, but as you’re moving off the asphalt on to the pavers, to continue looking”.

The Court of Appeal rejected Council’s arguments and determined that while the steps were not invisible, they were sufficiently conspicuous in the overall circumstances to generate a high probability of them not being seen by people who were not aware of them and not actively looking for them. The Court of Appeal accepted that once the steps were brought to the attention of a person, they were obvious, but until then, particularly on a downward sloping path leading to a disabled public toilet, they were not.

If you have sustained an injury, Toby Tancred and Melissa Arndell can help. They can provide you with legal advice, investigate your matter and represent you if you need to commence legal proceedings. Toby Tancred is a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and Melissa Arndell have the experience, knowledge and ability to help all injured people in difficult times.

When the injuries add up

The NSW Court of Appeal recently considered the circumstances in which the impact of multiple separate injuries can be combined to determine an injured worker’s whole person impairment. Assessment of an injured worker’s whole person impairment is critical in determination of their right to weekly benefits, medical and related treatments expenses, lump sum compensation and damages.

The injured worker sustained injuries to her right shoulder, thoracic and lumbar spine in 2011 and further injuries to her thoracic and lumbar spine in May and September 2012. The injured worker made a claim for lump sum compensation against her Employer in the Workers Compensation Commission (now the Personal Injury Commission).

The injured worker was referred to an Approved Medical Specialist (“AMS”), an independent Doctor appointed by the Commission to determine the injured worker’s level of impairment. The AMS was directed to apportion the injured worker’s impairment between the three dates of injury. The AMS assessed the injured worker to have a combined Whole Person Impairment of 15%, being 3% for her right shoulder, 5% for her thoracic spine and 7% for her lumbar spine.

Section 322 Workplace Injury Management and Workers Compensation Act 1998 (“WIM Act”) is in the following terms:

“322 Assessment of impairment…

  • Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured
  • Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker…”

An Arbitrator of the Commission determined the spinal impairments should be divided equally between the three dates of injury and that her total whole person impairment was less than 15% – the threshold for bringing a claim for Work Injury Damages.

The injured worker appealed the Arbitrator’s decision. A Deputy President of the Commission determined the spinal injuries could be assessed together, resulting in 12% Whole Person Impairment, but that the 3% Whole Person Impairment for the injured worker’s shoulder injury could not be aggregated given it was “a different injurious event”.

The injured worker appealed the Deputy President’s decision arguing that she had misconstrued s322 WIM Act and erred in finding that the injured worker’s injuries could not be assessed together. The Court of Appeal determined that all impairment arose out of and resulted from the same incident, being the incident on 14 November 2011, and should therefore be assessed together pursuant to s322(3) WIM Act.

The Court ordered that the determination of the Deputy President be set aside and that the Employer pay compensation to the injured worker for a 15% Whole Person Impairment as a result of injuries incurred on 14 November 2011.

This decision of the NSW Court of Appeal highlights the need for injured worker’s to receive expert and specialised legal advice to ensure they receive their proper and lawful entitlements for work injury.

As an injured worker you are entitled to be advised by Toby Tancred or Melissa Arndell. The Independent Review Office (IRO) can assist by providing funding for this legal advice. IRO provides funding to approved Solicitors to investigate claims, provide advice to you as an injured worker, and deal with employers and insurers on your behalf. Toby Tancred and Melissa Arndell are IRO Approved Lawyers. Toby Tancred is also a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and Melissa Arndell have the experience, knowledge and ability to help all injured workers in difficult times.

The right to refuse a medical examination

A recent decision of the Workers Compensation Division of the Personal Injury Commission determined whether an injured worker had to attend a medical examination arranged by their employer.

The worker sustained psychological injury in her employment. The employer accepted liability for her claim while it conducted further investigations that included a request that the worker be assessed by a Psychiatrist. The worker objected to the medical examination in circumstances where her General Practitioner was prepared to promptly provide her treatment records.

When the worker’s solicitor confirmed she would not be attending the “unreasonable” examination, the employer suspended the worker’s weekly payments. It was quite clear from an objective view that the employer had ignored the Workers Compensation Guidelines 2021 at this point. This was despite the worker’s solicitor drawing the relevant part of the guidelines to the attention of the employer. That part of the Guidelines states:

“7.7 Unreasonable request
If the worker considers the requirement to attend an IME unreasonable, they are to advise the insurer of the reasons for their objection.

The insurer must consider this objection and advise the worker of their decision. This advice must include contact information for the Workers Compensation Independent Review Office (WIRO). Benefits are not to be affected prior to adequate written notice being received by the worker.

Any decision to suspend payment of weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. This decision must be made on the basis of sound evidence, and the worker must be advised in writing of the reasons for the suspension and what they must do for weekly payments to be reinstated.”

The worker lodged an application in the Workers Compensation Commission, and it was heard by Arbitrator Batchelor, who delivered a decision on 15 September 2020. Arbitrator Batchelor referred to the Guidelines and noted that referral for an independent medical examination is only appropriate “when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to resolve the problem directly with the practitioners”. Arbitrator Batchelor held it was open to the employer to simply pay the General Practitioner’s invoice and then obtain the treatment records. On this ground alone the medical examination did not comply with the Guidelines. He found the worker was not obliged to undergo the medical examination and the employer could not suspend her weekly benefits.

The employer appealed Arbitrator Batchelor’s decision in the newly established Workers Compensation Division of the Personal Injury Commission. The employer argued that Arbitrator Batchelor erred by determining it did not comply with the Guidelines.

However, Deputy President Snell agreed with the original decision of Arbitrator Batchelor. He did not find any merit in the argument advanced by the employer that the Guidelines represent “a non-binding indication of policy” and instead determined Arbitrator Batchelor was bound to rely on the Guidelines. Deputy President Snell rejected the employer’s argument that it was prevented from making pre-payment of the General Practitioner’s invoice on the basis of a document titled “Workers compensation guide for medical practitioners”. Deputy President Snell held this submission was “plainly wrong” given the document did not possess “any regulatory authority at all”. The employer’s appeal was dismissed and Arbitrator Batchelor’s decision was confirmed.

This decision serves to highlight that quite often workers compensation insurers make requests of injured workers that are unreasonable and often unlawful. Do not hesitate to seek legal advice if you think something is unreasonable.

As an injured worker you are entitled to be advised by Toby Tancred. The Independent Review Office (IRO) can assist by providing funding for this legal advice. IRO provides funding to approved Solicitors to investigate claims, provide advice to you as an injured worker, and deal with employers and insurers on your behalf. Toby Tancred is an IRO Approved Lawyer, a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and his team have the experience, knowledge and ability to help all injured workers in difficult times.

The Personal Injury Commission

The Personal Injury Commission (“PIC”) was established on 1 March 2021. The PIC was established to hear and determine disputes relating to work injuries and in motor vehicle accidents. The PIC replaces the Workers Compensation Commission that previously heard work injury disputes and the Claims Assessment Resolution Service and Medical Assessment Service that dealt with motor accident injury disputes.

The aim of the PIC is to create a “one stop shop” tribunal with two streams of expertise – the Workers Compensation Division and the Motor Accident Division. Much of the procedure from the previous separate Tribunals has remained unchanged although there are some minor reforms. Of most importance, the entitlements, and benefits of injured people under the Workers Compensation and Motor Vehicle Accident legislation have not been reduced or adversely affected by the establishment of the PIC.

At a ceremonial sitting of the PIC to mark its commencement the NSW Attorney General Mr Mark Speakman SC said; “The last thing injured workers need is to be burdened with unnecessary paperwork and bureaucracy. The Personal Injury Commission will harmonise processes for thousands of claimants each year, saving them time and giving them better access to dispute resolution.” It is to be hoped that this stated aim of the PIC is something that this and future governments observe.

Since its commencement, I have lodged a number of Applications in the PIC, with most proceeding to teleconference and Hearing. Many Applications in the Workers Compensation Division have resolved, with injured workers being awarded weekly benefits, payment of medical expenses and lump sum compensation. Unfortunately, Applications in the Motor Accidents Division have been subjected to lengthy delays and this is entirely due to teething problems in the new technology that is being used by the Motor Accident Division. Similar problems have not been seen in the Workers Compensation Division and it is to be anticipated that the initial glitches will be resolved so that parties to motor accident injury disputes can also have those matters resolved quickly and efficiently.

As an injured worker you are entitled to be advised by Toby Tancred. The Independent Review Office (IRO) can assist by providing funding for this legal advice. IRO provides funding to approved Solicitors to investigate claims, provide advice to you as an injured worker, and deal with employers and insurers on your behalf.

If you have been injured in a motor vehicle accident Toby Tancred can help. He can provide you with legal advice, deal with the insurer on your behalf and represent you in a claim.

Toby Tancred is an IRO Approved Lawyer, a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and his team have the experience, knowledge and ability to help all injured persons in difficult times.

 

Don’t dismiss your super

If you are injured and unable to return to work you may be entitled to bring a Total & Permanent Disablement (“TPD”) claim through your superannuation fund. Depending on various factors including the amount of the premiums paid, you may have access to a TPD benefit ranging from the tens to hundreds of thousands of dollars.

To access this benefit, you must have suffered injury and be unable to return to work.  There are two types of Total & Permanent Disability policies; “own occupation” and “any occupation”.  “Own occupation” policies entitle an individual to a benefit if he or she cannot return to the usual occupation they were performing prior to their injury, or an occupation they have the skills, training and experience to undertake.  “Any occupation” policies entitle an individual to a benefit if he or she cannot return to any occupation whatsoever.

If you hold TPD insurance and meet the policy definitions of your superannuation fund, you are eligible to make a claim.  The claims process requires completion of a large number of documents and can be complex and, unfortunately, time consuming.  Your treating doctors will be required to certify that you are not capable of returning to your pre-injury occupation and your superannuation fund will request your medical records and information from your Employer.  If your superannuation fund recommends that your TPD benefit is paid, it will then go to the Trustee of the superannuation fund for final approval.  If your TPD claim is successful, you will also be able to obtain access to your superannuation balance, should you wish to do so.

Consideration should also be given to whether you hold any other insurance in your superannuation fund, such as income protection or death benefits, that you or your legal personal representative are eligible to claim.

It is helpful to seek legal advice when considering whether to lodge a TPD claim.  A Solicitor with expertise in this area can assist you through the claims process and increase the chance that your TPD claim is approved.  This year alone, Melissa Arndell of Toby Tancred Solicitor has assisted many people with their TPD claims and recovered millions of dollars of benefit for people unable to work.

If you have sustained an injury in the workplace Toby Tancred can help.  He can provide you with legal advice, investigate your matter and represent you if you need to commence legal proceedings.  Toby Tancred is a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running.  Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm.  Toby Tancred and his team have the experience, knowledge and ability to help all injured people in difficult times.

Can I record a conversation?

I am often asked if it is legal to record a conversation without another person’s knowledge or consent.

The Surveillance Devices Act 2007 pretty much prohibits the recording of a private conversation to which the person is a party but does permit recording if it is “reasonably necessary for the protection of the lawful interests” of the person who has taken the recording.

A recent decision of the Supreme Court provides some guidance but no definitive answers. The case involved a deceased estate.  The deceased had written a will leaving the entirety of his estate to his daughter, but there were a number of contradictory wills made over the course of the deceased’s life.  There was a dispute regarding the extent of care and assistance provided by the daughter to the deceased.

During the Hearing, one of the parties tried to tender a recording of a conversation between the deceased and another of his children.  The recording was made without the knowledge or consent of the deceased.  The recorded conversation included comments by the deceased about how often his daughter spent time with him and whether she had discussed moving into his home.

In her Judgment, Her Honour Justice Rees provided a detailed analysis of previous cases in which Courts have found recordings were “reasonably necessary for the protection of… lawful interests”.  Her Honour referred to four considerations a Court should take into account when determining whether a recording should meet the lawful interests’ exception in section 7(3)(b)(i) of the Surveillance Devices Act 2007:

  1. Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose;
  2. Whether it was important to protect oneself from being accused of fabricating a conversation;
  • Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a file note; and
  1. Whether there was a serious dispute on foot between the parties.

Her Honour admitted the recording into evidence on the basis it was reasonably necessary to protect the person’s lawful interests.  There was a serious dispute as to the deceased’s will at the time the recording was made, and the person who made the recording was seeking to obtain admissions from the deceased.  Her Honour ruled that the deceased spoke during the recorded conversation in a calm voice indicating that his answers to various questions were not contrived nor forced.

The “lawful interests” exception could be relied upon by an employee to provide evidence of unfair, unsafe or unreasonable work practices, or of an unfair dismissal. You would however be wise to seek legal advice before pressing record.

If you have sustained an injury in the workplace Toby Tancred can help.  He can provide you with legal advice, investigate your matter and represent you if you need to commence legal proceedings.  Toby Tancred is a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running.  Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm.  Toby Tancred and his team have the experience, knowledge and ability to help all injured people in difficult times.

Same but different

This month, the New South Wales Court of Appeal overturned a decision of the President of the Worker’s Compensation Commission.

Dr James Gardiner commenced working for Laing O’Rourke Australia Construction Pty Ltd in 2011.  His employment was terminated in 2018.  Immediately following his termination, Dr Gardiner lodged a complaint under the Anti-Discrimination Act 1977 citing workplace discrimination and victimisation due to his disability.  Dr Gardiner resolved that complaint with Laing O’Rourke. It agreed to pay him almost $30,000, plus his legal costs.  The terms of this agreement were set out in a Deed of Release signed by Dr Gardiner and Laing O’Rourke in September 2018.

In March 2018, and prior to the settlement of Dr Gardiner’s discrimination complaint, he brought separate proceedings in the Workers Compensation Commission for a psychological injury caused by discrimination and victimisation in the course of his employment with Laing O’Rourke.  Laing O’Rourke argued Dr Gardiner could not bring a separate workers compensation claim and argued that the money paid to resolve the discrimination complaint was “damages” awarded “in respect of” the same injury.

An Arbitrator of the Workers Compensation Commission agreed with Laing O’Rourke’s argument and dismissed Dr Gardiner’s claim.  Dr Gardiner appealed to the President of the Workers Compensation Commission, and the President upheld the Arbitrator’s original decision.  The President and the Arbitrator both reasoned Dr Gardiner’s discrimination settlement was “damages” awarded “in respect of” the same injury that was the subject of his workers compensation proceedings.

Dr Gardiner appealed to the Court of Appeal.  One of the key issues for determination was whether the intent of the Deed of Release was to also resolve any claim for workers compensation or work injury damages available to Dr Gardiner on a full and final basis.  The Deed expressly excluded any claim Dr Gardiner might have “pursuant to the provisions of any applicable Workers’ Compensation legislation, in accordance with the terms of this Deed.”  The Court of Appeal held the intended purpose of the Deed of Release was not to resolve all claims available to Dr Gardiner and found that its purpose was only to resolve Dr Gardiner’s discrimination complaint.

The Court of Appeal considered the legislative definition of “damages” and determined that “damages” do not extend to amounts recoverable under an independent statutory scheme such as the Anti-Discrimination Act.  The Court of Appeal also noted that it is not possible for a worker nor an employer to “contract out” of the Workers Compensation legislation, ie to agree that a worker has no rights.

The Court of Appeal set aside the decisions of the Workers Compensation Commission and Dr Gardiner’s matter was remitted to the Workers Compensation Commission to determine the remaining issues in dispute, properly, in accordance with the law.

Similar circumstances often arise for my clients, for example, where they have an entitlement to damages arising from both unfair dismissal and workers compensation proceedings.  The law does not prevent an injured worker from bringing a claim under workers compensation legislation, and a claim under separate unfair dismissal or anti-discrimination laws.

As an injured worker you are entitled to be advised by Toby Tancred.  The Workers Compensation Independent Review Office (WIRO) can assist by providing funding for this legal advice.  WIRO provides funding to approved Solicitors to investigate claims, provide advice to you as an injured worker, and deal with employers and insurers on your behalf.  Toby Tancred is a WIRO accredited Solicitor, a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer.  Toby Tancred and his team have the experience, knowledge and ability to help all injured workers in difficult times.

Pro Bono Covid 19 Legal Clinic

The Covid 19 virus is causing significant anxiety and fear in many people at the moment.  Unfortunately, some of this fear and anxiety is being fuelled by misinformation, or at the least, uncertainty on people’s part about their current situation and what the future holds.

For the immediate future I have decided to conduct a Pro Bono (ie free of any charge) Legal Clinic every Tuesday afternoon from the hours of 2:00pm to 5:30pm.  Any person seeking legal advice regarding the impact upon them of the Covid 19 virus can telephone my office on 6362 1210 and speak to me.  It may be that I will not be able to immediately speak with you by telephone but someone will handle your call and arrange a time for me to speak with you.

Let us all remember that this current situation will in time pass and that we should all do what we can to help each other through this uncertain period.