In Part 6 of the WorkCover Survival Kit, Adelaide injury lawyer Mal Byrne offers advice about getting off and staying off the workers compensation system.
You have suffered a serious injury. You will never return to your pre-injury duties. You are either not working at all or working reduced hours. What does the future hold? Will you be able to stay on weekly payments indefinitely? If it is all getting too much, can you get off the system by taking a pay out?
If you are on weekly payments, they will be discontinued should you return to work and be in a position to earn your pre-injury earnings. As advised in part 4, your payment can also be discontinued if you breach your rehabilitation obligations. However, even if they are discontinued, they should be reinstated should you meet your obligations once again.
Under the legislation, the insurer (the compensating authority is likely to be Employers Mutual Limited, see part 1) is bound to conduct a review of your weekly payments after two years from the date of injury. If the insurer decides your capacity to work is unlikely to improve in the short term, nothing will change. The difference however is that the insurer is entitled to take alternative occupations into account when assessing your capacity, and not just your old occupation or an alternative occupation available through your employer. Usually, before making a two year review, the insurer will send you to an occupational therapist to determine your work capacity and then to a vocational psychologist to see what forms of alternative occupations might be suitable. If the insurer decides that you have capacity to work in an alternative occupation, they can either reduce or discontinue your payments based on the amount of hours that they think that you can work in this alternative occupation. They don’t have to find you a job. They just have to prove that you have the capacity to do the job and that these jobs exist within the community in which you live. Generally, all jobs will be available within the metropolitan community. However, not all occupations are available to workers in regional or rural areas. Of course, if the insurer makes a decision to reduce or stop your weekly payments based on a two year review you have the right to dispute that decision and you should consult a lawyer immediately.
Two year reviews are not common these days and have been largely sidelined by the new two and a half year or 130 week review that came in on 1 April 2009. Under the new review, the insurer is bound to conduct a work capacity assessment. Once again, this will consist of a Functional Capacity Evaluation from an occupational therapist and/or an up to date report from your doctors. It may not include a vocational assessment. Once the insurer has this material, they can determine that you are fit to do a certain amount of hours in these alternative occupations. The availability of the job is irrelevant. It is solely a question of whether you can or cannot do the job. Once again, you have a right to dispute the determination. These reviews will only be conducted for people who are not working at all. If you are working some hours with your employer, but not your pre-injury hours, you are entitled to apply for a determination from the insurer that this is your maximum capacity in the long term and that your payment should continue as a result. If you make this application, the insurer will either make a decision straightaway or refer it to a Medical Panel for an opinion and then make the decision. Once again, if the decision does not go your way, you have a right to dispute the decision and you should consult a lawyer.
It is not surprising that most workers are completely fatigued by the workers compensation system once the two year review or 130 week reviews come around. Litigation often results and workers have normally had a gutful and are looking for an exit strategy. Under the law, WorkCover are permitted to offer workers what were previously called redemption payments or lump sum payments, where the worker gets off the system and the insurer is no longer required to pay the worker weekly payments and medical expenses. These payments used to be negotiated between the worker and WorkCover. However, the new chief executive officer of WorkCover Corporation has, with the approval of the Board, introduced a policy where no workers will be offered redemptions until further notice regardless of their capacity to work. Hence, the only way you can effectively ‘get off the system’ is to be either kicked off by the insurer on the basis of your work capacity after either 2 years or 130 weeks or give up. The only workers who can negotiate lump sum payouts are workers who are employed by exempt employers (see part 1) who have the discretion still to negotiate redemptions.
At the moment, the refusal to offer redemptions is a matter of policy. Redemptions are available under the law. However, they can only be negotiated between the worker and the insurer or WorkCover. There is no capacity for the Workers Compensation Tribunal or any court to order the insurer to pay a worker a redemption. Either a redemption is negotiated or the worker stays on the system. The policy is ridiculous. If the law permits redemptions, it should not be up to WorkCover to deny workers that right where they meet the criteria under the law. All it will do is cause many further disputes and litigation over work capacity and rehabilitation and more claims for depression. Of course, a policy can always be changed and hopefully WorkCover will see the light in the not too distant future, when the increased misery and cost that the current policy will inevitably bring convinces them to abandon it.
Author: Mal Byrne
PART 7 - What compensation is available to families of a worker who dies from a work injury?
PART 1 – Commencing a claim
PART 2 – Investigation of a claim
PART 3 – The decision
PART 4 – Rehabilitation
PART 5 – What about my pain and suffering?
PART 6 – Getting off and staying off “the system”
Mal Byrne is a Partner at South Australia's largest injury law firm Tindall Gask Bentley Lawyers. For a free initial interview about your workers compensation claim, contact Mal on (08) 8250 6668. TGB assists workers in South Australia and Western Australia.