Separovic Injury Lawyers Blog

Removal of the Workers’ Compensation Termination Date

Posted by Tony Separovic on 09 October 2020 13:22:14 AWST

At last - legislative relief for injured workers

Recent changes to West Australian workers’ compensation legislation, have for the first time in many years, stripped away a statutory obstacle that was a major impediment to injured workers accessing their legal rights and obtaining a sense of justice.

 

Over the last 20 years, various repressive legislative changes enacted in the states and territories of Australia have impacted adversely on the ability of injured workers to access common law rights and legal damages. Separovic Injury Lawyers views the workers’ compensation legislative framework in West Australia as very unsatisfactory.

 

Here, in particular the imposition of a tight deadline by which the injured worker must confirm that they intend on making a common law claim means that claimants are often prohibited from making a common law claim or receive less compensation than they deserve. Further to this, being prohibited from making a common law claim by an arbitrary and nonsensical deadline robs deserving claimants of their common law rights and it could be argued that this is an impost on our democratic process.      

 

After watching the legal rights and access to justice of injured victims be steadily eroded over time, this legislative change is a very significant ‘breath of fresh air’ for workers’ compensation claimants and plaintiff injury lawyers in West Australia. The removal of the ‘Termination Date’ by which an injured worker must confirm that they intend to make a common law claim is the first improvement to the legal rights and access to compensation enjoyed by West Australian workers in memory. 

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Tags: Work Accidents, Workers' Compensation

I am on workers’ compensation. Do I have to do a return to work program?

Posted by Tony Separovic on 25 September 2020 14:27:35 AWST

Most workplace injuries involve medical treatment and rehabilitation programs that are provided to the injured worker over many months and sometimes years. In each workers’ compensation claim it is hoped that the injured worker responds positively to their treatment and over time, regains the ability to work. Once an injured worker regains some capacity for work,  they must participate in a rehabilitation return to work program, that usually involves starting with an appropriate and suitable part time work trial gradually building up hours in either the pre-accident job or an alternative lighter job. All rehabilitation work trials must be approved by the worker’s GP. Importantly, it is not a matter for the employer or insurer to determine when or how a worker can or should go back to work. This is a medical decision which is made usually by the worker’s GP or treating specialist.

 

Over the years, Separovic Injury Lawyers have seen return to work programs become a major source of conflict between injured workers, the employer and their insurers. These conflicts often arise where the worker is pressured to return to work before they are physically or mentally ready to do so. Often in these cases, the injured worker may still be suffering from pain or discomfort caused by the work injury. Alternatively, the employee could be in a situation where the work trial is aggravating their injury, but they think they are legally obliged to push on, based on what they are being told by the insurer, employer or rehabilitation provider.  

 

Generally, the employer or their insurer is keen to have the worker return to work as soon as possible after the accident and thereby be in a position to stop paying weekly payments of compensation as soon as possible.

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Tags: Work Accidents, Workers' Compensation

I am on workers’ compensation. Do I have to attend medical examinations?

Posted by Tony Separovic on 07 September 2020 17:34:26 AWST

Injured workers entering the West Australian workers’ compensation system often become frustrated by a lack of information surrounding medical appointments and examinations. Requests to attend medical appointments, usually to be reviewed by a medical specialist  can come from the worker’s employer, their insurer or the worker’s plaintiff injury lawyer. The medical reviews that these parties may request the worker to attend are for the purpose of obtaining medical evidence, in the form of medical reports. This evidence is used for various legal purposes relating to the management of the worker’s claim for compensation. The medical evidence obtained through these examinations can determine whether a worker’s weekly payments should be discontinued, whether the worker could return to work, the level of impairment resulting from the injury, how much lump sum compensation the worker could be paid and whether the worker could make an industrial negligence claim. Not attending or obstructing a medical appointment requested by the employer or their insurer can result in a range of consequences for an injured worker, the most serious of which includes the suspension of the worker’s right to claim compensation & in particular ongoing weekly payments of workers compensation.   

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Tags: Work Accidents, Workers' Compensation

Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020.

Posted by Tony Separovic on 25 August 2020 14:51:54 AWST

Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020. 

The COVID-19 pandemic has had far reaching impacts on our lifestyle, health system, economy and governance. In Western Australia the Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 (“The Bill”) was introduced into Parliament on 24 June 2020. The Bill was successfully passed through West Australian Parliament on 13 August 2020. The Bill provides various amendments to the Workers’ Compensation and Injury Management Act 1981 (“The Act”) and will come into operation as soon as it receives Royal Assent.

 

The Bill is focused on easing the burden of West Australian health care workers who contract the COVID-19 virus and need access to workers’ compensation entitlements. The Bill does, however, also introduce a number of other significant developments in how West Australian workers’ compensation claims are managed. Here, most importantly is the removal of the ‘Termination Day’ or deadline by which an injured worker must elect to pursue a common law damages claim.

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Tags: Workers' Compensation

Can my employment be terminated while I am on workers’ compensation?

Posted by Tony Separovic on 12 August 2020 16:07:25 AWST

Workers' compensation claims and job security.

Anecdotally, it is reasonable to say that most of us have heard horror stories about the treatment of injured workers while they are on workers’ compensation. These accounts often involve the employer terminating the injured worker, the insurer demanding that the worker provide a voluntary resignation, the employer or insurer pushing the injured worker back to work before their symptoms have resolved or general ridicule being directed at the injured worker by management or colleagues.

 

The workers’ compensation system in Western Australia generally functions well and arguably outperforms the systems of other Australian states and territories. Notwithstanding this, the Workers’ Compensation and Injury Management Act 1981 (“The Act”) provides injured workers’ with a minimal level of job protection and leaves them exposed to various strategies that are used by employers and insurers to terminate the employment of injured workers.  

 

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Tags: Workers' Compensation

COVID-19 and Your Right to Claim Personal Injury Compensation.

Posted by Tony Separovic on 07 August 2020 14:39:38 AWST

Where did the Novel Coronavirus or COVID-19 come from?

On 31 December 2019, the World Health Organisation was first informed about a growing number of pneumonia cases being diagnosed in Wuhan City, China. At the time, the cause of these infections was unknown but it was believed that they were somehow connected to the Huanan Seafood Wholesale Market. On 1 January 2020 the market was closed down. On 7 January 2020 the Chinese government announced that a novel coronavirus had been identified as the cause of the infections.

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Tags: Personal Injury Compensation

Workplace bullying and workers' compensation stress claims.

Posted by Tony Separovic on 15 November 2019 17:02:26 AWST

Instances of workplace bullying have been increasing over time.

Instances of bullying in the workplace have risen dramatically in Australia in recent times. In 2012, in response to mounting community concern, the Australian Government established a parliamentary inquiry into workplace bullying. The findings of the inquiry led to the creation of a specific bullying jurisdiction within the Fair Work Commission. Disturbingly, Safe Work Australia data confirms that workplace injuries related to bullying and harassment have nearly doubled in Australia over the past decade.

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Tags: Work Accidents

What is a workers' compensation conciliation conference at WorkCover?

Posted by Tony Separovic on 07 November 2019 16:25:58 AWST

What is WorkCover?

WorkCover WA regulates West Australia's workers' compensation and injury management scheme. WorkCover's mission is ensure that work related injuries are effectively and efficiently managed so that injured workers are able to make a safe and sustainable return to work. The West Australian workers' compensation system is the largest privately underwritten scheme in Australia and involves insurance being provided by the Insurance Commission of Western Australia, 8 commercial insurers and 24 self-insuring entities.

WorkCover is funded by a levy on the workers’ compensation insurance premiums paid by West Australian employers and levies on approved self-insured employers.

WorkCover plays a number of key roles for the West Australian government. Here, for example WorkCover provides the government with strategic policy direction regarding work injury matters and workers' compensation. It also ensures that employers and service providers comply with the Workers' Compensation and Injury Management Act 1981 (“the Act”). Another important role that WorkCover plays is to provide a independent dispute resolution service for workers, their employers and the employer’s insurer. In the 2017 / 2018 financial year WorkCover was involved in coordinating and convening 2,035 conciliation conferences and 578 arbitrations in regards to disputes between workers' compensation claimants and insurers. 

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Tags: Workers' Compensation

Is retraining available through the workers' compensation system?

Posted by Tony Separovic on 04 November 2019 16:16:00 AWST

Are retraining programs provided as part of a workers' compensation claim?

It is possible for injured workers to access specialised retraining programs during their workers’ compensation claim. In these case the insurer must have admitted liability in the worker’s compensation claim. The injured worker must meet specific eligibility criteria in order to be considered for a retraining program. These programs allow workers who are unable to return to their pre-injury employment to complete particular vocational training or tertiary studies. Retraining programs are accessible only while the workers' compensation claim is live and before it has been settled. Access to specialised retraining programs cannot not be built into any settlement agreement so if the workers' compensation claim is settled the retraining program will cease.
 
The eligibility criteria is strict and the application process is relatively complex. To ensure that you have the best chance of accessing a retraining program during your workers’ compensation claim, we suggest that you obtain legal advice from a specialist personal injury lawyer.

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Tags: Workers' Compensation

Form 36 Notice to Worker About Termination Date for Election.

Posted by Tony Separovic on 11 July 2019 17:06:08 AWST

What is a 'Form 36 Notice to Worker About Termination Date for Election'?

If liability in your workers' compensation claim has been admitted, a Form 36 Notice to Worker About Termination Date For Election should be sent to you by your employer or their insurer. The purpose of the Form 36 Termination Date Notice is to inform you that, if you intend to make a common law damages claim, you must elect to do so prior to the Termination Date. The Form 36 Termination Date Notice is sent approximately 26 weeks before the Termination Date. 

 

A Termination Date sounds scary. What does it really mean?

Put simply, the Termination Date is the date, 12 months from the date on which the injured worker lodged their workers' compensation claim with their employer. Particular importance is placed on the Termination Date as it is the date by which you must elect to pursue a common law claim against your employer.

 

Contrary to common misconceptions the Termination Date is not:

  • the date when injured workers that are receiving workers' compensation are terminated from their employment;
  • the date when injured workers receiving regular workers' compensation payments have their payments cut;
  • the date when a workers' compensation claim is settled or finalised; or
  • the date by which all treatment in regards to a workers' compensation claim must be completed.
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Tags: Work Accidents, Personal Injury Compensation, Workers' Compensation

Welcome to the Separovic Injury Lawyers Blog

We will share interesting, informative and up to date information and resources about personal injury compensation law in Western Australia, covering the following topics:

  • claiming Road Accident Compensation;
  • claiming Workers' Compensation;
  • claiming Work Accident Injury Common Law Damages arising from an unsafe workplace or a negligent act; 
  • claiming Public Liability Compensation;
  • claiming Criminal Injury Compensation;
  • developments in personal injury case law; 
  • coping with a personal injury and accessing medical and other services;
  • legislative change and its impact on personal injury compensation; and
  • useful resources to assist you in dealing with doctors, lawyers and the claims process.

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