Who Benefits from WorkCover: The workers or Employers?

On the WorkCover website their mission statement is ’to increase the competitiveness of the NSW economy through productive, healthy and safe workplaces’.

Workers Compensation

Can an employee rely on WorkCover when injury strikes?

WorkCover promises a productive and safe place to work. However, after an independent report uncovered some damning truths, it has to be asked: who really benefits from this scheme – the employers or the employees?

An independent report into WorkCover recently discovered that New South Wales workers compensation was, in fact, skewed toward employers. The report found that workers have more restrictions than insurance companies who use lawyers than employees who do not. This sort of legal advantage can’t be underestimated: without a lawyer, most workers will not receive information about eligibility for compensation, and to compound that impact, insurers are not required to tell workers about their right of appeal.

With the criticisms of WorkCover piling up, this lack of communication between those injured, insurance companies and WorkCover is perhaps the most damaging of all. Sometimes the most disadvantaged – for example, those with mental injuries – are often treated the worst and their lack of education ensures the big insurance companies win the uneven fight.

The response from WorkCover has been a statement reassuring the scheme’s critics that they are working with the Independent Review Office to make sure employees are educated about their options and rights. Even with this response, it’s clear that more work has to be done by WorkCover to ensure both the employer and employee benefit fairly from the scheme.

Too Hot to Handle: extreme weather conditions and your WorkCover rights

Workers Compensation

Work too hot to handle?

Image via shutterstock

Paramedics have been called out to over 30 cases where workers have suffered heat stroke or exhaustion during the latest spate of extreme heat in south-east Australia.

As escalating temperatures scorch the countryside, health experts have started issuing public warnings about the dangers of strenuous activity and extreme heat.

It’s important that workers understand that they have the right to work in a safe environment and that employers understand it’s their responsibility to provide that safe workspace; be it extreme heat or cold, the weather has the ability to impact upon the physical and psychological condition of employees.

So what are your rights when it comes to extreme weather conditions? Do you have to sweat through the midday sun during 43 degree heat risking dehydration; is frostbite a legitimate risk for essential outdoor workers during extreme cold?

Work involving hot or cold temperatures can result in a range of symptoms from irritation to life threatening conditions. Employers must understand it is illegal to expose their employees to extreme heat or cold, but you might be asking yourself…how are these conditions determined?

HEAT ILLNESS

For a workplace to be considered unfit because of high temperatures, the following factors may contribute:

*High temperatures

*Exposure to high thermal radiation

*Close proximity to high levels of humidity

*Amount of air movement

*Physical activity (metabolic heat load)

SIGNS AND SYMPTOMS

Heat illness covers a large array of medical conditions that arise from your body not being able to cope. These conditions may include:

*Fainting

*Stroke

*Heat exhaustion

*Heat cramps

*Rashes

*Fatigue

LEGAL OBLIGATIONS

The NSW Occupational Health and Safety Regulation guidelines state that’s important to distinguish between a condition, which threatens the health or safety of a worker, and a feeling of discomfort.

Thermal discomfort may occur in an office on a hot and humid day where there is no functioning air-conditioning, and whilst measures should be taken by the employer to ensure the comfort of their employee, there is minimal risk of a medical condition developing.

However, Heat exhaustion and the even more severe, heat stress, are medical conditions which should be addressed by a medical professional. Heat stress is a medical emergency and an ambulance should called if an employee shows worsening symptoms.

These conditions, along with hypothermia or frostbite, which can occur in extreme cold, are serious health complications which can lead to long-term medical problems and even death.

Both inside and outdoor workers are vulnerable to these conditions; depending on their industry and working conditions, ie. an employee working in a bakery around ovens on a high-temperature day is placomced under a similar degree of physical duress as a landscape gardener is under those same weather conditions as their work exacerbates the heat.

Simple steps can be taken by an employer to ensure that their employees are as safe as possible during these times, whilst still placating workflow deadlines. Employers should consider rescheduling working hours and altering schedules so that heavy lifting or laborious work is rotated fairly amongst staff. Staff should be fitted out with appropriate work wear for the weather conditions, and in extreme heat, water and sunscreen should be distributed regularly. Those working from great heights or with potentially dangerous machinery should be considered at most risk — heat fatigue may not be of  much concern as a health condition, but fainting at the controls or heavy machinery or a high apparatus could potentially cause unprecedented harm.

Work Health and Safety Legislation should be checked regularly by employers and by those staff who want to know more about their rights in the workplace.

The WorkCover website has the following legal recommendations for employers:

“A person conducting a business or undertaking (PCBU – the new term that includes employers) must ensure, so far as is reasonably practicable, that workers carrying out work in extremes of heat or cold are able to carry out work without a risk to their health and safety.

Personal and environmental factors should be considered when assessing the risk to workers’ from working in a very hot or cold environment.

Personal factors include:

  • the level of physical activity
  • the amount and type of clothing worn
  • the duration of the exposure.

Environmental factors include:

  • air temperature
  • the level of humidity
  • the level of air movement and radiant heat.’

For more information, the code of practice for Managing the work environment and facilities provides guidelines on how to minimise or eliminate exposure to extreme hot or cold conditions.

NSW Government’s WorkCover website’s “Working in heat” fact sheet can be found here: WorkCover- Working in heat

Sydney MP says changes to workers compensation laws have made the process “harder”

NSW’s worker’s compensation laws have changed; one Sydney MP says the changes haven’t been for the better.

Workers Compensation

Are our workers still protected?

Image via Shutterstock

Caption: Are our workers still protected?

When premier Barry O’Farrell brought in his massive 2012 overhaul of workers’ compensation laws, the intent was to rein in a $4 billion WorkCover deficit.

At the time, New South Wales workers compensation premiums were doubling those in Victoria and it was clear something had to be done.

For O’Farrell, getting WorkCover right represented a significant drive in economic improvement. But two years later, has it all gone wrong?

Here’s what we know so far.

1. Claim complications

Workers’ compensation claims have nearly halved in the Bankstown area since the new laws were introduced in June 2012. Sydney Labor MP Tania Mihailuk believes this falling-off has been due to changes made in the actual claim process rather than less accidents occurring in the workplace.

Some have reported that filing a claim is more difficult now than it has been in the past with overly complicated paperwork, unclear requirements and conflicting laws.

2. The impact.

The 2012 changes to compensation laws involved the scrapping of workcover for employees injured during travel to and from work. There were 860 less claims made in the last two years by residents in Mihailuk’s ecectorate of Bankstown.

3. Controversies

There have been ongoing reports of medical benefits and weekly payments for injured workers being reduced or cut off altogether. According to Tania Mihaliuk, where legal fees were previously covered by the law, injured workers must pay their own legal costs whether or not they win the case.

Finance and Services Minister Andrew Constance has refuted these claims and insists the claims process for individuals have not changed as part of the reform.

Final thought.

It’s too early to give O’Farrell a damning assessment of his new compensation laws but judging from personal accounts, work needs to be done.

Do you think workers should be compensated if injured on the commute to and from work?

Money gets saved by a tightening of the belt, but at what cost for our workers?

How Facebook Can Kill Your Worker’s Compensation Claim | BPC Law Blog

Everything good or bad that happens in our lives goes straight onto our Facebook wall: buying that new place in Sydney, that awful break-up, or just that hour of boredom at work. But is it really a good idea to broadcast every aspect of your life on the internet if you’re working with a lawyer to claim for worker’s compensation?

Social networking

There isn’t a person on Facebook who doesn’t have at least a few photos of them and their mates having a good time at a party. Maybe you’re just all sitting around drinking, or you might be getting up to a bit more. Regardless of what’s happening in the photos, they can be used as evidence against you and your worker’s compensation claim.

One real-life example of this sort of thing happening in a worker’s compensation case occurred in Arkansas in America. Zackery Clement was injured at work when a fridge fell on him. As a result of the accident, Clement found himself with a hernia. His initial claim for worker’s compensation went through, and he spent over a year receiving compensation for medical expenses and total-disability benefits. However, when Clement returned to court to extend the period of his compensation things went south.

Zackery Clement felt that he still needed to be on worker’s compensation for his accident as he was in “excruciating pain”. His first attempt at extending his benefits failed when medical tests on Clement found that he had no hernia anymore and didn’t need any further surgery. It was when Clement returned to court to appeal this decision that the Facebook photos appeared.

In a series of pictures shown to the court, Zackery Clement can be seen drinking with his buddies at a party, and generally having a good time – somewhat unbelievable behaviour for a man who claimed to be in excruciating pain. Initially, Clement tried to have the photos disregarded as evidence in the claim, but the court ruled that the photos could be used as proof against him. And with that Zackery Clement’s claim was denied.

Workers Compensation

Pictures of parties could cost you your worker’s compensation claim

The lesson here is obvious: if you’re going to claim for worker’s compensation, don’t be silly and have photographic proof of you doing things you claim you can’t, especially on your personal Facebook page.

Being Honest to Get the Best Results: What You Need to Know About Workers Compensation | BPC Law Blog

There’s an unfortunate stereotype that anyone who claims for workers compensation is just trying to get money and get out of having to do their job. It’s the job of many Sydney compensation lawyers to make sure that their client isn’t viewed that way by encouraging them to be as honest as possible. But how does honesty work in your favour when claiming for workers compensation?

Workers Compensation

Your claim for workers compensation is only going to be successful if you’re truly deserving of compensation. The way to prove this is to be as honest, open, and detailed about what your situation is or was, e.g. if you had a bad back for three months, keep a three-month-long record of it, and see doctors for their opinions. If you aren’t honest in your case, or you have very little material supporting your claim, it can all go quite badly.

Recently in the case between Topaltsis and Crane Distribution Ltd, Ms Topaltsis claimed for workers compensation saying that she had suffered a lower back injury because of her work. In affidavits presented to the court, she explained in detail the extent of her injury and how it had affected her daily life, but when she was cross-examined she was found to be avoiding questions and was deemed a ‘poor historian’ when it came to describing her life while injured. It’s possible that Ms Topaltsis has poor memory issues, or in a court situation became nervous and confused, however, the defense delved deeper into Ms Topaltsis’ actions and found that she hadn’t been honest about the extent of her injuries.

Workers Compensation

On Ms Topaltsis’ Facebook page she described going rock climbing at Kakadu, sleeping in a boat while out fishing, and walking long distances frequently all during the time period of her injury. If her back injury was as severe as she claimed she wouldn’t have been able to do those things. The defence also referred to notes taken by both her chiropractor and GP who stated that she didn’t have back pain, and they even showed video footage of Ms Topaltsis at the time doing actions like bending over that she had said she couldn’t do.

The case between Topaltsis and Crane Distribution Ltd is a perfect example of why being honest, as well as keeping records (and being able to remember them), will stand you in good stead when it comes to a workers compensation claim. Ms Topaltsis didn’t win her claim, but you can.

Psychiatric Injuries in the Workplace: Are You Protected by Compensation Law? | BPC Law Blog

It’s very difficult to define and prove psychiatric injuries for the purpose of receiving workers compensation. To be successful in such a claim, you often need to turn to the expertise of a Sydney compensation lawyer, but why is it so difficult to prove a psychiatric injury in the workplace?

Workers Compensation

A psychiatric injury in the workplace, or a work-related mental disorder as defined by SafeWork Australia is a little difficult to understand. In essence it boils down to mental stress, which isn’t actually a health condition, but rather the cause of health conditions like stress, anxiety, depression, and nervous breakdowns. SafeWork Australia realises that this mental stress can be caused by all number of things including seeing or being involved in a traumatic event, workplace violence, harassment, work pressure, or suicides and attempted suicides. However, just because you experience mental stress, doesn’t mean you will actually develop a diagnosable mental disorder – that all depends upon a wide range of factors including your own individual personality. So if mental stress is such a loose and slippery thing, is there even a chance of you receiving workers compensation for it?

In actuality, you can claim for workers compensation as a result of mental stress as long as you have evidence that the events occurred and it has affected you in negative some way. The problem is that many people do not claim for workers compensation for mental stress and psychiatric injuries for a number of reasons. One of the key reasons why people won’t make claims is because they do not realise it is possible to do so, and instead choose to use their own sick or holiday leave as a means of recovery. Other people leave the stressful work environment all together and don’t claim for compensation, possibly because they just want to get on with their lives. Others worry that if they do claim for psychiatric injury they will be treated differently as a result of having a mental illness.

The heart of it all is compensation law can help you if you suffer a psychiatric injury, but you can never be compensated if you don’t actually tell someone that you are suffering. If no one knows anything, they can’t do anything.

Violence at Work: Who’s Liable and Who’s Entitled to Workers Compensation Under the Law? | BPC Law blog

You’d be aware that when it comes to workers compensation claims, many regarding bullying or harassment in Sydney workplaces are paid out quickly. But what about if a worker is attacked in a random act of violence? Could a lawyer help them get fair compensation?

Compensation Law

When we’re talking about random acts of violence at work, think robberies and armed assailants. Now, most jobs aren’t high-risk, you don’t expect to get robbed or attacked, and neither do the business operators think it’s going to happen. This is where you run into issues of whether the attack on the worker was foreseeable.

To avoid paying large amounts of compensation, a business or place of employment will argue that the act of violence was so unlikely to happen that it was almost impossible, and therefore why would they need to have safety measures in place? Often in such cases, even if the judge thinks that the business did not do everything they could have potentially done to prevent such an incident, the court will find that the judge is focusing too much on hindsight. So could a business get away with never having to pay our compensation?

Of course not, the law expects any business or employer to assess real risks and to reduce these risks. If the risk is likely, something needs to be done, but if the risk is highly unlikely, the law doesn’t expect any employer to spend money on preventing it from happening as their money might never be put to good use.

Workers Compensation

CCTV cameras might not be deemed necessary in every place of work

In essence, if you have suffered because of an act of violence at work, to get your workers compensation appeal approved the likelihood of that attack comes into question. If it was likely that you would be attacked at work, e.g. you work at a service station, and your employer didn’t keep you safe, then you’ll find your claim will most likely get through. However, if you work in a safe industry and the attack was extremely unlikely, chances are that you won’t receive compensation.