“What help is available to get me through this?”

Toby Tancred can advise you as to whether you are eligible to lodge a workers compensation claim for work injury and can lodge any claims for workers compensation on your behalf.

If you are unable to work, you may be entitled to weekly compensation.

For the first 13 weeks after an injury, as an injured worker you are eligible to receive 95% of your pre-injury weekly earnings.  Up to 130 weeks after a work injury, you are eligible to receive 80% of your pre-injury weekly earnings.

As an injured worker you may continue to receive weekly compensation up to five years after a work injury if you are unable to work.  After five years, as an injured worker you will continue to receive weekly compensation if you have a serious injury and are assessed as an injured worker with high needs.

If you require medical treatment due to your work injury, you may be entitled to payment of your medical expenses and expenses associated with medical treatment such as travel expenses.  As an injured worker, while ever you receive weekly compensation you also receive medical expenses.

Very often, as an injured worker, you might require surgery to help you recover from your work injury.  You are entitled to have a surgeon of your choice perform the surgery and you are entitled to all expenses associated with the surgery including hospital fees and rehabilitation expenses.

Injured workers can find dealing with insurers and the workers compensation scheme complicated and time consuming.  Often an insurer will tell an injured worker that it is not going to pay for medical treatment.  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 the claim, provide advice to you as an injured worker, and deal with the employer and insurer on your behalf.  Toby Tancred is a WIRO accredited Solicitor and a Law Society Personal Injury Accredited Specialist with the experience, knowledge and ability to help all injured workers in difficult times

Percy Raines was married to Robin Raines and had two adult children, Stephen and Richard Raines.  The family met with a series of unfortunate occurrences.  In 1981, Robin was injured and had to undergo two back operations.  She continued to experience health problems.  In 1996, Richard suffered a severe traumatic brain injury in a motor vehicle accident during the course of his employment.  He was entitled to compensation under the Workers Compensation Act 1987 (NSW) but required around-the-clock care from his parents.  Then, in 2016, Percy was diagnosed with mesothelioma arising from asbestos exposure in the 1960s and 1970s.

Percy brought proceedings in the Dust Diseases Tribunal against Amaca and Seltsam for damages arising from his asbestos exposure.  Amaca (James Hardie) and Seltsam (Wunderlich) were manufacturers, suppliers and distributors of the products to which Percy was exposed.  It was agreed Percy should receive $470,000 in damages but an amount could not be agreed for the loss of his capacity to provide gratuitous domestic care services to both his wife and his son under section 15B of the Civil Liability Act 2005 (NSW).  Section 15B states that damages can be awarded for the loss of capacity to provide domestic services to dependents including, among others, a spouse and a child, if, that gratuitous domestic care equates to at least six hours per week for a period of at least six consecutive months.

Ultimately, Justice Kearns of the Dust Diseases Tribunal awarded Percy almost $1.5 million for lost capacity to provide gratuitous care following his being diagnosed with mesothelioma.

Amaca and Seltsam appealed to the NSW Court of Appeal.  The Appeal was dismissed.  The Court of Appeal found that while gratuitous care is often thought of as active care, such as running errands, preparing meals and attending to housework, it can also extend to passive care.  In this case, Percy would often keep an eye and ear out for Richard during the day.  He would check that Richard didn’t leave taps running, he would listen out for Richard while he was in the shower and keep Richard company while he was watching television.  The Court deemed this “constant supervision and availability to step in, in case of emergency” a type of gratuitous care.  It was likened to a live-in housekeeper who would be considered to be rendering a service at all times, not just when he or she is actively caring for a person.

Sadly, Percy died after the hearing of the appeal and prior to the Court of Appeal’s decision.  The executor of his estate, his son Stephen, represented him in the appeal proceedings.  The appeal was dismissed and Amaca and Seltsam were ordered to pay the legal costs of Percy’s estate.

This case has confirmed that the definition of gratuitous domestic care under section 15B of the Civil Liability Act encompasses both active and passive care, and that damages can be awarded to compensate an individual’s loss of capacity to provide traditional, active care, as well as more novel, passive care, to their dependents.

While I know it to be true, it’s nice to be reminded once in a while that insurers aren’t above the law.

On 28 November 2018 McCallum J handed down her judgment in the Supreme Court case of Employers Mutual Limited v Heise [2018] NSWSC 1842.

The case revolved around Ms Heise, a former NSW police officer who had been discharged on medical grounds.  In April 2017, Ms Heise lodged a workers compensation claim with Employers Mutual Limited (“EML”) claiming permanent impairment for psychological injury.  Despite various correspondence from the Solicitor representing Ms Heise to EML – including correspondence by letter, email and phone on at least nine occasions between April 2017 and July 2018, some fifteen months later, EML did not make a determination of Ms Heise’s claim.

On 25 July 2018 the Solicitor for Ms Heise commenced a private criminal prosecution against EML alleging that they were in breach of s283(1) of the Workers Injury Management and Workers Compensation Act 1998 (NSW) (“WIMA”) which states “a person who fails to determine a claim as and when required by this Part is guilty of an offence unless the person has a reasonable excuse for the failure.”  On 30 October 2018 the Local Court issued a Court Attendance Notice on EML in relation to the alleged breach.

As McCallum J eloquently noted in her judgment “with a measure of expedition which must have seemed unfamiliar to Ms Heise, Employers Mutual Limited approached the duty judge, Fagan J, last Tuesday, 20 November 2018” filing a Summons seeking the Court Attendance Notice issued against them be quashed and declared void, invalid and of no effect.

McCallum J held that the Summons of EML should be dismissed and the Court Attendance Notice against EML should stand.  She stated Ms Heise, as well as the State Insurance Regulatory Authority (“SIRA”) had a right to commence private criminal proceedings against EML.  This right came from s245(5) of the WIMA which provides “proceedings for an offence against this Act, the 1987 Act or the regulations under those Acts may be instituted by (but not only by) the Authority.”

McCallum J’s decision provides authority for the proposition that SIRA does not hold a monopoly regarding the prosecution of offences against insurers.  It strengthens the position of workers’ which can only be seen as a positive development in the workers compensation landscape. 

The October Court of Appeal decision of Robinson v State of New South Wales [2018] NSWCA 231 looked at the powers of police to arrest and hold individuals.

The Appellant, Mr Robinson, voluntarily attended a Sydney police station at 5:00pm on 22 December 2013 in response to attempts by police to contact him.  Leading Constable Smith immediately arrested Mr Robinson, without warrant, for breach of an apprehended violence order.  Mr Robinson participated in an interview and was subsequently released, without charge, at 6:18pm.

Mr Robinson commenced proceedings against the State of New South Wales, claiming damages for wrongful arrest and false imprisonment.  In the first instance, his claim was dismissed.

However on appeal, a different decision was reached.  The Court determined Mr Robinson’s arrest was unlawful under section 99 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).  Section 99 states that a police officer may arrest a person, without a warrant, if the police officer suspects on reasonable grounds that the person is committing or has committed an offence.

Leading Constable Smith gave evidence that at the time of Mr Robinson’s arrest, he had not decided if he would charge him.  Justices McColl and Basten stated it was this lack of intention to charge Mr Robinson with an offence that rendered the arrest unlawful.  It was therefore wrongful and resulted in false imprisonment.

Mr Robinson’s appeal was successful.  He received damages from the State of New South Wales in the amount of $5,000.

This decision highlights the need for police to be certain in the use of their powers of arrest under LEPRA.  Any power that results in the deprivation of liberty of a person should be exercised with utmost caution.

A recent decision of the Workers Compensation Commission in the case of Baldacchino v Pacific National Pty Ltd [2017] NSWWCC 239 is being heralded as a win for injured workers as it has rewritten the previously strict five year limit for ongoing medical expenses under the NSW workers compensation scheme.

On 19 June 2012 significant reforms were made to the Workers Compensation Act.  The reforms, on the face of it, were introduced to rein in a scheme described as ‘not financially sustainable’.  Amongst other things, the Act was amended to restrict access to lump sum compensation to those with whole person impairment of 11% or greater only and removed an entitlement to compensation for pain and suffering.  The 2012 reforms greatly reduced the rights of injured workers.

In 2015 the Act was again amended and s59A introduced.  That section limited the time periods for which insurers were liable to pay an injured worker’s medical expenses – down to either two or five years, depending on the level of a worker’s whole person impairment.

In the present case, the insurer argued Mr Baldacchino, a retired railway worker was not entitled to compensation for knee replacement surgery due to the time limits imposed under s59A.  This was despite medical evidence showing the deterioration in his knee was directly related to an injury he had sustained at work in 1999.

The Workers Compensation Commission decision increased the rights of injured workers by allowing those who were injured more than five years ago, including those who have retired, to seek compensation for deterioration of a workplace injury where an ‘artificial aid’ is required.  The Commission interpreted the definition of an ‘artificial aid’ to include “anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome”, such as a knee replacement for Mr Baldacchino.

Future decisions in this area will be watched with interest.  It is thought, applying the above logic, the Commission will now allow for other types of joint replacement surgeries arising from a workplace injury, such as for a hip or shoulder, to be compensated.