Review of the accident compensation act

In December 2007, the Minister for WorkCover, Tim Holding, commissioned an independent review of the legislation government Worker’s Compensation in Victoria. The review is being conducted by Peter Hanks. As part of the review process, discussions with interested parties, including plaintiff lawyers and affiliated organisations have been held. Holding Redlich have been actively been part of joint submissions prepared by these bodies. Andrea Tsalamandris has been the partner representative in the collaboration with other major plaintiff law firms whilst Lisa Maynard and Liat Blacher, both members of the Victorian committee of the Australian Lawyer’s Alliance have been involved in discussions regarding that organisation’s contribution.

Whilst the possible scope of the review is large, the submissions have focused largely on changes to particular aspects of the law that were seen to be particularly unjust for injured workers. These include but are not limited to:

• Abolition of the 40% loss of earning capacity testing. In order to claim damages for economic loss, the legislation requires that worker to prove at least a 40% loss of pre-accident earning capacity. This was felt to be arbitrary and unjust and the cause of extra litigation. Furthermore, this test is inconsistent with other injury based legislation, including the Transport Accident Act;

• Improvement in impairment benefits for workers with psychiatric injury with a proposed reduction in the threshold for eligibility for compensation for these injuries to 10% (to be in line with physical injuries) and improvement in levels of payment for psychiatric injuries.

Psychiatric injuries - a Good result

An emerging trend is that of psychiatric injuries suffered in the workplace. These cases are notoriously complex but we recently resolved a claim for a client who suffered psychiatric injury at work as a result of bullying and harassment.

Our client complained to a senior manager about the treatment that she was receiving and the response of management was to demote her and to move her into a new area whereby she was forced to sit outside the office of the very person she complained about. She was not offered any support for her emotional distress.

Although the settlement itself was confidential, it was a great outcome for out client whose injury was so severe it had prevented her working since those events. The case settled after running for several days in the County Court of Victoria.

NEW WORKER’S COMPENSATION CLAIM FORMS – A WARNING

New claim forms ask the worker specific questions about when they injured themselves, when symptoms first arose and when they went off work as a result of a claimed injury. Whilst in some circumstances an injury is a result of a discrete accident, in many circumstances, injury can be something that occurs over time. For example, a physical injury may be sustained as a result of repetitive movement or a psychological injury may be sustained following ongoing harassment over a period of time.

The new claim forms do not overtly provide room for the answer to the question of when an injury occurred as being “over the course of employment”.

The answer to this question potentially has consequences to the injured worker in terms of acceptance of injuries being referable to particular employment, and, in some circumstances, the date of injury is crucial in terms of assessment of when a claimant’s common law rights may expire.

Claimants and their representatives should be aware of this section of the claim form and should be wary of putting down a definite injury date in circumstances where the injury occurred over time.

NEW COST ARRANGEMENTS

For many years Holding Redlich has been committed to maximising the compensation that our clients receive. We have recently decided to formalise this commitment by including it as a term of the cost agreement that we offer to our Personal Injury clients.

In almost all cases there is a gap in legal costs that the Defendant does not pay for. We now agree that the gap in such legal costs (called solicitor/client costs) will not exceed 15% of any s98C lump sum monies paid to a client for a work injury and will not exceed 25% of damages paid in all other claims. In most cases the fees we charge will be much less than these amounts but we agree that those figures should represent the maximum sum charged to ensure that the majority of the compensation is paid to the injured worker.

48 hours turnaround for appointment

We appreciate that many people are anxious about their legal rights and also now offer for new clients to meet a solicitor within 48 hours of that person calling our office and requesting an urgent appointment.

Urgent advice may particularly be needed by workers dealing with the Conciliation Service whereby a decision has to be made as to whether to have the WorkCover dispute referred to the Medical Panel or whether to get a Genuine Dispute Notice to take the case to court.

Please let our staff know if an urgent appointment is required and we are happy to oblige. Ph: 9321 9988