January 2, 2025 • 23 mins
This is the second episode of our best-of Summer Series while the MSSN Team take a break and prepare for more episodes in 2025.
In this episode, Dr Caroline Howe speaks with Kevin Sawers from the Walker Law Group about worker's rights as they make their way through the Worker's Compensation Scheme. Navigating this process can be very challenging and confusing, but with Kevin's knowledge we can decode a lot of this confusion.
If you would like to listen to this full episode, then this can be found as Episode 2 of the My Social Support Network podcast.
We have also provided a short clip from Episode 13, where Dr Caroline Howe speaks to Scott Dougall, Personal Injury specialist from Carroll & O'Dea Lawyers.
See omnystudio.com/listener for privacy information.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
S1 (00:01):
Hello and welcome to the My Social Support Network podcast,
a series to guide you along the path to recovery
while on workers compensation. In this series, we will answer
questions from you and provide information from experts and people
with lived experience currently going through worker's compensation and those
who have made their way to the other side. Through
these interactions, we'll be giving you tools, advice, but most importantly,
(00:24):
encouragement on what can be a stressful time when you're
also recovering from an injury sustained in your workplace.
S2 (00:31):
Welcome back to our second episode in our summer series.
This is like the greatest hits what everybody's been talking about,
our most loved and our most listened to conversations on recovery.
This week, we're going to recap on the talk that
we had with Kevin Sawyers from the Walker Law Group.
And out of all of the episodes we've done this year,
this was the most popular. We hope that you enjoy
(00:53):
the lawyer talk with Kevin Sawyers just as much as
we did. When you talk about worker's rights, Can you
explain what an injured worker's rights are? What does that
actually mean?
S3 (01:06):
Yeah, I mean, there's some specific ones. You know, you
have a right to choose your own GP, for instance.
That's a fundamental right as well. You know, for people
who are new to worker's compensation, the nominated treating doctors
like the captain on the ship, you know, they are
the ones that know or should know everything that's going
(01:27):
on for your injury and your recovery and return to
work and all that sort of stuff. So having that
choice and then making a good choice is a real, um, imperative.
You have a right to have your claim administered in
a lawful way. We often talk about statutory timeframes or
statutory rights. This is statutory is a code word for
(01:49):
requirements that are legislative, either in either of the acts
or the workers compensation regulation, or even in series material,
which usually is mostly is really good, like standards of practice,
and you have your right to have your claim managed
consistently with the statutory requirements. So one would be that
(02:10):
just if a treatment is recommended by your treating doctor
or some other treatment professional, in your case the insurer
has 21 days to respond. So that's a right. They
can't just leave a treatment request in limbo indefinitely. You
have a right that they will administer it in a
timely fashion. You have a right to choose any treatment provider. Um,
(02:35):
that doesn't always mean the insurer will cover it, but
assuming they will, you have the right to choose. And
that will include choosing your own rehab provider. And there
are other little rights, like you have the right to
expect your employer to provide suitable duties, um, especially early on,
unless it's not reasonably practicable for them. But that's a
that's a right. You have the right to be paid
(02:57):
weekly compensation in a timely fashion, and the act actually
refers to it ideally being when you normally would be
paid before your injury. A number of.
S2 (03:06):
People often get asked to use up, sick leave or
holiday leave before they put in a claim. Are they
allowed to do that?
S3 (03:14):
If you have an injury at work, whatever the injury is,
you shouldn't be using your sick leave. You should get
a certificate of capacity and notify your employer and lodge
the claim. Um, sick leave and annual leave. They're not leave.
That should be used for an injury. That's what worker's
compensation insurance is there to cover. And whilst the arrangements
(03:36):
with sick leave are a bit complicated in the act
to emphasize the point here, the 1987 Workers Compensation Act
allows for an injured worker to get both annual leave
and workers compensation payments in the same week. Insurers will
describe it as being essentially and it is it's it
has the effect of a double dipping because annual leave
(03:56):
is an industrial right that you accrue. If you get
paid it, you it doesn't, um, alter the fact that
you also need to get worker's compensation at that time.
And I think that's just one way that the government
displays that you shouldn't be using up your industrial rights
or industrial entitlements. When a worker's compensation liability exists.
S2 (04:17):
We get workers who are asked to resign. From what
I understand, it puts workers in a really difficult situation.
They're on a worker's comp claim, they may or may
not have been eligible for suitable duties, but then the
employer or they get that or a request from a
case manager will come to us to actually ask the
(04:38):
worker to resign from their position. What are the legal
rights around something like that? Is that allowed to happen?
S3 (04:45):
If there's a if an injured worker wanted a remedy
against an employer for dismissal or maybe unfair dismissal, the
Fair Work Commission would be the environment for that. And
I could recommend a lawyer, of course, but I don't
practice in it. But what I would say in terms
of the insurance side is that we would never recommend
to an injured worker to resign. There is no requirement
(05:06):
for them to resign. I would say that maybe not
an unscrupulous insurer, but certainly an insurer could construe it,
construe it, pardon me as non-compliance and in certain circumstances
they might use that resignation to, um, reduce or cease
access to weekly compensation wages. And I've seen that happen
(05:28):
in the past. So because of that, I would never
recommend resigning. If an employer goes through a process, either
through their EBA or the contract that outlines a process
that ends up in a termination. Um, I'd just reassure
and we do reassure our clients that being let go
by the workplace in that circumstances has no impact on liability.
(05:50):
It's an irrelevant consideration from the insurance perspective. And you
just means you just end up getting paid your weekly
compensation directly from the insurer, instead of the insurer paying
the employer and the employer paying the injured worker.
S2 (06:05):
Once someone's in a worker's comp claim, what could they
expect their relationship with their case manager to be like?
S3 (06:11):
Yeah, that's an important question. And I would say, look,
I hope it's a good one. Okay. Mostly I was
a case manager in my career for a really long time,
and I like to think I was the best one ever.
So I know what it's like to be a case manager.
And mostly I'm still friends with lots of people in
insurance that are case managers and mostly just like you
and me, just raising a family, paying the bills. And
(06:34):
I don't think any of them set out to be villains.
So I would tell our clients always to try to
do their best to get along with their case and
be respectful. But I also just think, Carolyn, that you
just need to be realistic. If you're on worker's compensation
for some time, it doesn't even have to be ages.
It could just be a couple of months. You're going
(06:56):
to have your case manager change. It's inevitable that there
will be turnover. Um, it's it's just inevitable. Um, and
there's all sorts of reasons people get promoted or they
resign or they've got too much work. So the work
gets shuffled around, you know, or they some of the insurers,
they have their case managers only handle a claim for
(07:16):
a certain length of time and then it gets moved on.
So I know that that can be sometimes unsettling for
an injured worker, but it's unfortunately it will never change.
You should never think of them as your friend. They're
only temporarily involved in your life for a little while,
and no matter how well-meaning and that they are, there
are factors in their insurance workplace that are outside of
(07:37):
their control. And they could be lovely today. And then they're,
you know, you'll never speak to them again tomorrow. So
we just say, look, sometimes we know that interactions with
a case manager can be unsettling for your mental health perspective.
And if that's the case for you, for you or
for someone you know. I just say, look, it's important
to be in consultation with the case manager, but it
(07:57):
can be via email. And so and I find for
people who have had some sort of traumatic thing happen
that's caused their claim or they've developed a mental illness or,
you know, whatever it is, it's okay to ask them
to communicate with you in writing. And the benefit of
that is if it's something to do with your treatment,
then you can take it to your next appointment with
your GP or your psychologist and get their input. If
(08:20):
it's something that seems technical and you have a lawyer
like me, you can send it to me or your
other lawyer. And if it's something sort of in the
middle that's got a bit of a return to work feel,
you can show Carolyn. So it's okay to ask the
case manager to communicate in writing. And then if as
long as you respond back appropriately and, you know, respectfully,
I think that that's a good way to move forward.
S2 (08:41):
What are the different ways that someone who has a
worker's compensation claim can exit the scheme?
S3 (08:50):
Good question. So getting a job is the most obvious one.
Like going back to work, whether it's where you got
hurt or in a new workplace. Another one would be
if you get healed and you get a pre-injury duties
certificate from your family doctor or your GP. They're probably
what I would say is like an organic outcome. And
(09:11):
that's how I think the majority, or certainly how the
scheme is designed to facilitate those sort of things, either
getting better or getting back to work somewhere same or different.
In terms of exiting the scheme through other ways, you
can settle your claim. So there's two ways to settle
(09:31):
up your claim. One's called a commutation and one's called
a work injury damages negligence claim. And both of them
are lump sum claims. They have different pathways though, and
usually attract different amounts. But what they both have in
common is that you have to have a fairly severe
injury to be eligible. And the way that that severity
(09:54):
is measured in New South Wales is you have to
have what's called a whole person impairment of at least 15%.
I mean, in normal life, 15 probably doesn't sound a lot,
but it's it's pretty significant for someone with a mental illness.
It usually means that they aren't able to work for
the very foreseeable future or again, and for a physical injury,
(10:17):
it usually means having had either a significant surgery, like
to your spine or a number of operations, or just
lots of body parts of your body that are affected
so that it is available. Carolyn. But the scheme is
set up in mind to only allow it for people
with quite bad injuries. I will say, I just want
(10:39):
to put one caveat on these comments that Carolyn, if
there's anyone here who's considered by the legislation to be
an exempt worker, so this might be a person that
was a police person or an ambulance. Paramedic. Fireman. Fireman.
There are different requirements. They're considered exempt from these rules
that I was just discussing. Look, the Personal Injury Commission
(10:59):
has a panel of doctors called medical assessors, or we
call them Mas. And if there is a disagreement on
the whole person impairment between your assessment and the insurer's assessment,
you can go to the essentially, a referee doctor at
the Personal Injury Commission called these Mas and then they
will do a binding whole person impairment assessment. These assessments
(11:24):
are quite serious. They are binding. They can be appealed
in certain circumstances. Generally the approach would be that they
are binding. So it's only approached with care. I'll just
say even just the making of a whole person impairment claim,
the timing of it really matters. I would say particularly
if you have a physical injury, because you can only
(11:45):
make one of these claims once you've made that claim,
even if your condition deteriorates or changes significantly, it's very hard,
if not impossible, to then make another or monetary compensation
whole person impairment claim. So the timing of it really matters.
And usually you'll talk to your lawyer and carefully about
that and your doctor. But once the once you've made one,
(12:05):
if there is a disagreement, then the commission is the
place to sort it out.
S2 (12:09):
One of the other questions that's come up is if
you have a rehab provider or the, you know, the
people that are allocated to you to help you get
back to work aren't working and you don't feel supported,
who can you actually appeal to or what is? What
are your choices there? I know that you said earlier
that it is your choice for rehab provider. So when
(12:32):
you're in it though, can you still choose it? What
if the insurer says no? Like what? What are your
choices there?
S3 (12:40):
Yeah. Well, I mentioned earlier that the nominated trading doctor
is the captain of the ship. And with anything to
do with your treatment and return to work in nominated treating,
doctors should be feeling empowered to take initiative. So if
you've got a rehab provider and you're not getting a
good vibe, I think it probably would need to be
more than just a personality difference. You know, if you
(13:02):
really feel like they're not on your side or they're not, um,
doing the things that they, they committed to or that
they should be, then when you see a nominated treating doctor, um,
just like your doctor would give a referral for some
new treatment like physiotherapy or psychology, you could ask the
doctor to give a referral for a different provider and
(13:24):
articulate on the certificate of capacity. There's a comment section
on page two that they can outline why the change
of rehab provider would be beneficial. All things equal, I
would say that usually a insurer would seriously consider that
because if they've got a rehab provider involved in the case,
they're they're hopeful that there's going to be some forward
(13:46):
Movement in an injured workers claim. Whether that's finding a
job or doing a course or whatever is appropriate under
the circumstances. They're optimistic that that could happen and they
would want all things equal or rehab, provided that you
had confidence in.
S2 (14:01):
One of the questions that's come from the group is
if you can explain what the injured worker's rights to
legal advice and representation representation are and what eyrow is
and what do they do?
S3 (14:16):
Yeah. An injured worker's rights to legal advice. Well, the
government have set it up to facilitate it. So and
that's where eyrow come into it. Eyrow has a dual function.
Not that they would describe it necessarily this way, but
I feel like one of their functions is as a ombudsman,
so they can be appealed to like you would in
(14:37):
other areas of your life. You might reach out to
an ombudsman to make a complaint. So I access them
on client's behalf, and clients can access row two to
make a complaint about the conduct of a claim by
an insurer. But there are other function which is the
Oilers part of Iro is. And again, they wouldn't necessarily
(14:59):
describe it this way, but the way I do is
it's like a legal aid style function of Iro, where
they deal with applications for grants of funding for lawyers
like me to give free legal assistance for injured workers
like you all. And it's a very generous scheme, unlike
Legal Aid. Not that I'm an expert on it, but
(15:19):
from the little that I know, legal aid at a
federal level is means tested, whereas Eli's through Iro gives
free legal assistance to injured workers in New South Wales
without a means test at all. So anyone who has
an injury, even the most modest injury like a cut finger,
they will even fund legal advice for something as small
as that. And that's why. Yeah. Look, I think we
(15:41):
often get people referred to us from medical centres or
physiotherapists or all sorts of places, because they know that
there's this lovely setup where the state government generously pays
for free legal assistance.
S2 (15:56):
Thank you. Why is it important for someone who is
on a claim to be seen as trying to go
back to work, trying to volunteer? What are the benefits
of that?
S3 (16:07):
Yeah, that's a that's an important question. There are some
statutory responsibilities that an injured worker has. There's a couple
of sections in the 1998 act that, um, mandate certain
requirements for an injured worker. Section 47 talks about an
injured worker being required to participate in the development of
(16:28):
an injury management plan, and then any requirements that are
outlined in that injury management plan are important to meet.
And the reason for that is the insurer can go
through a process that could end up with the suspension
and ceasing of weekly compensation, so it's important to be
(16:49):
seen to be trying your best, if that's the vibe
of the question, because it could cost you your your wages. Now,
I would just say that that's, um, dependent on an
injured worker having capacity for work. These provisions that I
just discussed there, they're toothless if you have no capacity
for work. But the moment you have some capacity for
(17:11):
any kind of work, these requirements become very important. And
it can lead to. Yeah, like I said, the suspension
and or and cessation of payments if, if, if the
insurer takes the view that you aren't trying your best.
S2 (17:23):
If you could give, I guess, one piece of advice
to someone who is on worker's compensation. What would be
your most encouraging, best piece of advice that you could
give to someone who feels stuck in the mess of it?
S3 (17:38):
I definitely think it's great to have a job, so
if you can get a job, like if you're fit
to work and you can get a job, it's the best.
I would also say it's important to have a good
doctor and treating team. Okay. And that and that you
understand what they're planning for you and you're involved in
it and you agree with it. And you can then
get all the way behind it. So having the right
(18:00):
treating team I think really matters. And yeah, look, I
think making the most of the claim experience is probably
something else, which I know is probably a surprising thing
to say. But while you're on worker's compensation, there are
certain schemes that you can access that are governed like that,
Sarah pay for. I know that, Sarah. You know, you
don't probably interact with Sarah that much. They're more the
(18:22):
regulator for the insurer. But they do have some schemes,
like retraining and some other related schemes that help with getting,
you know, back to work. I usually say to people
at the start, look, um, if you can get get
back to work, it's good. We'll help you if you can't.
But I really do like to think, um, yeah, going
getting a job eventually is a is a beautiful thing,
(18:43):
but I know that not everyone can. That's what insurance
is for, is it's a safety net. But, you know,
look into what you can do to make the most
of it while you're on it.
S2 (18:52):
Thank you. Kevin.
S1 (18:53):
Today's guest was Kevin Sawyer's senior associate at the Walker
Law Group. You can contact the Walker Law Group at
Walker Law Group. Com.au. That is Walker law group. All lowercase. Com.au.
If you'd like to listen to that episode in full,
listen to episode two of the My Social Support Network podcast.
(19:14):
While you're with us, please enjoy this clip from our
chat with Scott Dougal. He's a personal injury specialist at
Carolyn O'Dea lawyers. He joined us to talk about returning
to work.
S4 (19:25):
Injured worker does have an obligation to be willing to
participate in suitable work, and an insurer must also endeavour
to facilitate that. So injured workers got to cooperate, employers
got to provide suitable work and the insurer is supposed
to coordinate this injury management plan. I think what needs
(19:46):
to be borne in mind is the definition of suitable duties.
It's often overlooked, but that is not about your pre-injury role.
Suitable duties consists of work that's available within that employer,
potentially external employers, that's within the constraints or the confines
of your work cover certificate. And so that could be
(20:07):
in a different department, different role. So if you're back
at work, even if it's in a different department or
a different role, suitable duties isn't about I was a
concreter and that's that's all I do. If you've got
some admin skills or other skills that's totally appropriate. Suitable
duties are a stepping stone in theory on that path
(20:29):
to returning to your pre-injury role, if that's possible. So
it's often not viewed like that. And that means that
people just get told there's nothing available in your section.
Go home and nothing good happens from there. The other way.
Area where the clarity is required is on their capacity
for work, and it is open to doctors to be
a little bit creative around that. Certainly we're talking about
(20:51):
hours that you can do. We're talking about restrictions on
what you can and cannot do, be it physically or psychologically,
but it can also traverse things like reporting structures. I
can't return to work under that supervisor, but I can
return to work in theory with that supervisor. And I've
had instances, and I think it's a good approach where
(21:13):
a GP will say has capacity to return to work
but needs a mediation to resolve underlying issues. So arguably
they're going beyond the scope of what they should, but
it's giving clear direction about the return to work.
S1 (21:28):
That was Scott Dougal, personal injury specialist at Carroll and
O'Dea lawyers. You can listen to that full interview as
episode 13 of the My Social Support Network podcast, Returning
to Work.
S2 (21:39):
We hope you enjoyed the episodes this year. We certainly
enjoyed making them. We will be back in 2025, so
fear not. If you're sitting there thinking, oh my goodness,
how will my 2025 go without my friends of the
MSN community? Then fear not, we are coming back and
we are bigger and better than ever. And it's all
(21:59):
because that very, very first person clicked download. Listen now.
And that is probably what you should do. Tell your friends,
tell your mum. I know my mum listens. She's always commenting.
So enjoy the episodes that we have had in the
past and get ready for a whole new year. Check
us out on our socials. We've got Facebook, we've got
(22:20):
Instagram and we have Rehab Reimagined, a newsletter on LinkedIn
where we explore, unpack and try and reimagine rehabilitation for
the people that we want to help the most, which
is the injured worker. My social support network, where we
reimagine rehabilitation so that you, your family, and your community
(22:45):
can thrive.
S1 (22:46):
The holiday season can be isolating, so if you'd like
to speak to someone, then reach out. There are people
who can be there for you. Lifeline on 13 1114.
Beyond Blue on 13024636 and the 24 hour mental health
access line on 1800 081 501. And if you know a young
(23:11):
person 25 and under, or you are a young person
25 or under, you can access the kids helpline on 1800 551 800.
And of course, if it's an emergency and you require
urgent support, please reach out to ambulance or police on 000.
From everyone at MSN, we wish you a very Happy
(23:31):
New Year. We hope you can have a relaxing, stress
free time doing what you love and we look forward
to seeing you next year.
Hello and welcome to the My Social Support Network podcast,
a series to guide you along the path to recovery
while on workers compensation. In this series, we will answer
questions from you and provide information from experts and people
with lived experience currently going through worker's compensation and those
who have made their way to the other side. Through
these interactions, we'll be giving you tools, advice, but most importantly,
(00:24):
encouragement on what can be a stressful time when you're
also recovering from an injury sustained in your workplace.
S2 (00:31):
Welcome back to our second episode in our summer series.
This is like the greatest hits what everybody's been talking about,
our most loved and our most listened to conversations on recovery.
This week, we're going to recap on the talk that
we had with Kevin Sawyers from the Walker Law Group.
And out of all of the episodes we've done this year,
this was the most popular. We hope that you enjoy
(00:53):
the lawyer talk with Kevin Sawyers just as much as
we did. When you talk about worker's rights, Can you
explain what an injured worker's rights are? What does that
actually mean?
S3 (01:06):
Yeah, I mean, there's some specific ones. You know, you
have a right to choose your own GP, for instance.
That's a fundamental right as well. You know, for people
who are new to worker's compensation, the nominated treating doctors
like the captain on the ship, you know, they are
the ones that know or should know everything that's going
(01:27):
on for your injury and your recovery and return to
work and all that sort of stuff. So having that
choice and then making a good choice is a real, um, imperative.
You have a right to have your claim administered in
a lawful way. We often talk about statutory timeframes or
statutory rights. This is statutory is a code word for
(01:49):
requirements that are legislative, either in either of the acts
or the workers compensation regulation, or even in series material,
which usually is mostly is really good, like standards of practice,
and you have your right to have your claim managed
consistently with the statutory requirements. So one would be that
(02:10):
just if a treatment is recommended by your treating doctor
or some other treatment professional, in your case the insurer
has 21 days to respond. So that's a right. They
can't just leave a treatment request in limbo indefinitely. You
have a right that they will administer it in a
timely fashion. You have a right to choose any treatment provider. Um,
(02:35):
that doesn't always mean the insurer will cover it, but
assuming they will, you have the right to choose. And
that will include choosing your own rehab provider. And there
are other little rights, like you have the right to
expect your employer to provide suitable duties, um, especially early on,
unless it's not reasonably practicable for them. But that's a
that's a right. You have the right to be paid
(02:57):
weekly compensation in a timely fashion, and the act actually
refers to it ideally being when you normally would be
paid before your injury. A number of.
S2 (03:06):
People often get asked to use up, sick leave or
holiday leave before they put in a claim. Are they
allowed to do that?
S3 (03:14):
If you have an injury at work, whatever the injury is,
you shouldn't be using your sick leave. You should get
a certificate of capacity and notify your employer and lodge
the claim. Um, sick leave and annual leave. They're not leave.
That should be used for an injury. That's what worker's
compensation insurance is there to cover. And whilst the arrangements
(03:36):
with sick leave are a bit complicated in the act
to emphasize the point here, the 1987 Workers Compensation Act
allows for an injured worker to get both annual leave
and workers compensation payments in the same week. Insurers will
describe it as being essentially and it is it's it
has the effect of a double dipping because annual leave
(03:56):
is an industrial right that you accrue. If you get
paid it, you it doesn't, um, alter the fact that
you also need to get worker's compensation at that time.
And I think that's just one way that the government
displays that you shouldn't be using up your industrial rights
or industrial entitlements. When a worker's compensation liability exists.
S2 (04:17):
We get workers who are asked to resign. From what
I understand, it puts workers in a really difficult situation.
They're on a worker's comp claim, they may or may
not have been eligible for suitable duties, but then the
employer or they get that or a request from a
case manager will come to us to actually ask the
(04:38):
worker to resign from their position. What are the legal
rights around something like that? Is that allowed to happen?
S3 (04:45):
If there's a if an injured worker wanted a remedy
against an employer for dismissal or maybe unfair dismissal, the
Fair Work Commission would be the environment for that. And
I could recommend a lawyer, of course, but I don't
practice in it. But what I would say in terms
of the insurance side is that we would never recommend
to an injured worker to resign. There is no requirement
(05:06):
for them to resign. I would say that maybe not
an unscrupulous insurer, but certainly an insurer could construe it,
construe it, pardon me as non-compliance and in certain circumstances
they might use that resignation to, um, reduce or cease
access to weekly compensation wages. And I've seen that happen
(05:28):
in the past. So because of that, I would never
recommend resigning. If an employer goes through a process, either
through their EBA or the contract that outlines a process
that ends up in a termination. Um, I'd just reassure
and we do reassure our clients that being let go
by the workplace in that circumstances has no impact on liability.
(05:50):
It's an irrelevant consideration from the insurance perspective. And you
just means you just end up getting paid your weekly
compensation directly from the insurer, instead of the insurer paying
the employer and the employer paying the injured worker.
S2 (06:05):
Once someone's in a worker's comp claim, what could they
expect their relationship with their case manager to be like?
S3 (06:11):
Yeah, that's an important question. And I would say, look,
I hope it's a good one. Okay. Mostly I was
a case manager in my career for a really long time,
and I like to think I was the best one ever.
So I know what it's like to be a case manager.
And mostly I'm still friends with lots of people in
insurance that are case managers and mostly just like you
and me, just raising a family, paying the bills. And
(06:34):
I don't think any of them set out to be villains.
So I would tell our clients always to try to
do their best to get along with their case and
be respectful. But I also just think, Carolyn, that you
just need to be realistic. If you're on worker's compensation
for some time, it doesn't even have to be ages.
It could just be a couple of months. You're going
(06:56):
to have your case manager change. It's inevitable that there
will be turnover. Um, it's it's just inevitable. Um, and
there's all sorts of reasons people get promoted or they
resign or they've got too much work. So the work
gets shuffled around, you know, or they some of the insurers,
they have their case managers only handle a claim for
(07:16):
a certain length of time and then it gets moved on.
So I know that that can be sometimes unsettling for
an injured worker, but it's unfortunately it will never change.
You should never think of them as your friend. They're
only temporarily involved in your life for a little while,
and no matter how well-meaning and that they are, there
are factors in their insurance workplace that are outside of
(07:37):
their control. And they could be lovely today. And then they're,
you know, you'll never speak to them again tomorrow. So
we just say, look, sometimes we know that interactions with
a case manager can be unsettling for your mental health perspective.
And if that's the case for you, for you or
for someone you know. I just say, look, it's important
to be in consultation with the case manager, but it
(07:57):
can be via email. And so and I find for
people who have had some sort of traumatic thing happen
that's caused their claim or they've developed a mental illness or,
you know, whatever it is, it's okay to ask them
to communicate with you in writing. And the benefit of
that is if it's something to do with your treatment,
then you can take it to your next appointment with
your GP or your psychologist and get their input. If
(08:20):
it's something that seems technical and you have a lawyer
like me, you can send it to me or your
other lawyer. And if it's something sort of in the
middle that's got a bit of a return to work feel,
you can show Carolyn. So it's okay to ask the
case manager to communicate in writing. And then if as
long as you respond back appropriately and, you know, respectfully,
I think that that's a good way to move forward.
S2 (08:41):
What are the different ways that someone who has a
worker's compensation claim can exit the scheme?
S3 (08:50):
Good question. So getting a job is the most obvious one.
Like going back to work, whether it's where you got
hurt or in a new workplace. Another one would be
if you get healed and you get a pre-injury duties
certificate from your family doctor or your GP. They're probably
what I would say is like an organic outcome. And
(09:11):
that's how I think the majority, or certainly how the
scheme is designed to facilitate those sort of things, either
getting better or getting back to work somewhere same or different.
In terms of exiting the scheme through other ways, you
can settle your claim. So there's two ways to settle
(09:31):
up your claim. One's called a commutation and one's called
a work injury damages negligence claim. And both of them
are lump sum claims. They have different pathways though, and
usually attract different amounts. But what they both have in
common is that you have to have a fairly severe
injury to be eligible. And the way that that severity
(09:54):
is measured in New South Wales is you have to
have what's called a whole person impairment of at least 15%.
I mean, in normal life, 15 probably doesn't sound a lot,
but it's it's pretty significant for someone with a mental illness.
It usually means that they aren't able to work for
the very foreseeable future or again, and for a physical injury,
(10:17):
it usually means having had either a significant surgery, like
to your spine or a number of operations, or just
lots of body parts of your body that are affected
so that it is available. Carolyn. But the scheme is
set up in mind to only allow it for people
with quite bad injuries. I will say, I just want
(10:39):
to put one caveat on these comments that Carolyn, if
there's anyone here who's considered by the legislation to be
an exempt worker, so this might be a person that
was a police person or an ambulance. Paramedic. Fireman. Fireman.
There are different requirements. They're considered exempt from these rules
that I was just discussing. Look, the Personal Injury Commission
(10:59):
has a panel of doctors called medical assessors, or we
call them Mas. And if there is a disagreement on
the whole person impairment between your assessment and the insurer's assessment,
you can go to the essentially, a referee doctor at
the Personal Injury Commission called these Mas and then they
will do a binding whole person impairment assessment. These assessments
(11:24):
are quite serious. They are binding. They can be appealed
in certain circumstances. Generally the approach would be that they
are binding. So it's only approached with care. I'll just
say even just the making of a whole person impairment claim,
the timing of it really matters. I would say particularly
if you have a physical injury, because you can only
(11:45):
make one of these claims once you've made that claim,
even if your condition deteriorates or changes significantly, it's very hard,
if not impossible, to then make another or monetary compensation
whole person impairment claim. So the timing of it really matters.
And usually you'll talk to your lawyer and carefully about
that and your doctor. But once the once you've made one,
(12:05):
if there is a disagreement, then the commission is the
place to sort it out.
S2 (12:09):
One of the other questions that's come up is if
you have a rehab provider or the, you know, the
people that are allocated to you to help you get
back to work aren't working and you don't feel supported,
who can you actually appeal to or what is? What
are your choices there? I know that you said earlier
that it is your choice for rehab provider. So when
(12:32):
you're in it though, can you still choose it? What
if the insurer says no? Like what? What are your
choices there?
S3 (12:40):
Yeah. Well, I mentioned earlier that the nominated trading doctor
is the captain of the ship. And with anything to
do with your treatment and return to work in nominated treating,
doctors should be feeling empowered to take initiative. So if
you've got a rehab provider and you're not getting a
good vibe, I think it probably would need to be
more than just a personality difference. You know, if you
(13:02):
really feel like they're not on your side or they're not, um,
doing the things that they, they committed to or that
they should be, then when you see a nominated treating doctor, um,
just like your doctor would give a referral for some
new treatment like physiotherapy or psychology, you could ask the
doctor to give a referral for a different provider and
(13:24):
articulate on the certificate of capacity. There's a comment section
on page two that they can outline why the change
of rehab provider would be beneficial. All things equal, I
would say that usually a insurer would seriously consider that
because if they've got a rehab provider involved in the case,
they're they're hopeful that there's going to be some forward
(13:46):
Movement in an injured workers claim. Whether that's finding a
job or doing a course or whatever is appropriate under
the circumstances. They're optimistic that that could happen and they
would want all things equal or rehab, provided that you
had confidence in.
S2 (14:01):
One of the questions that's come from the group is
if you can explain what the injured worker's rights to
legal advice and representation representation are and what eyrow is
and what do they do?
S3 (14:16):
Yeah. An injured worker's rights to legal advice. Well, the
government have set it up to facilitate it. So and
that's where eyrow come into it. Eyrow has a dual function.
Not that they would describe it necessarily this way, but
I feel like one of their functions is as a ombudsman,
so they can be appealed to like you would in
(14:37):
other areas of your life. You might reach out to
an ombudsman to make a complaint. So I access them
on client's behalf, and clients can access row two to
make a complaint about the conduct of a claim by
an insurer. But there are other function which is the
Oilers part of Iro is. And again, they wouldn't necessarily
(14:59):
describe it this way, but the way I do is
it's like a legal aid style function of Iro, where
they deal with applications for grants of funding for lawyers
like me to give free legal assistance for injured workers
like you all. And it's a very generous scheme, unlike
Legal Aid. Not that I'm an expert on it, but
(15:19):
from the little that I know, legal aid at a
federal level is means tested, whereas Eli's through Iro gives
free legal assistance to injured workers in New South Wales
without a means test at all. So anyone who has
an injury, even the most modest injury like a cut finger,
they will even fund legal advice for something as small
as that. And that's why. Yeah. Look, I think we
(15:41):
often get people referred to us from medical centres or
physiotherapists or all sorts of places, because they know that
there's this lovely setup where the state government generously pays
for free legal assistance.
S2 (15:56):
Thank you. Why is it important for someone who is
on a claim to be seen as trying to go
back to work, trying to volunteer? What are the benefits
of that?
S3 (16:07):
Yeah, that's a that's an important question. There are some
statutory responsibilities that an injured worker has. There's a couple
of sections in the 1998 act that, um, mandate certain
requirements for an injured worker. Section 47 talks about an
injured worker being required to participate in the development of
(16:28):
an injury management plan, and then any requirements that are
outlined in that injury management plan are important to meet.
And the reason for that is the insurer can go
through a process that could end up with the suspension
and ceasing of weekly compensation, so it's important to be
(16:49):
seen to be trying your best, if that's the vibe
of the question, because it could cost you your your wages. Now,
I would just say that that's, um, dependent on an
injured worker having capacity for work. These provisions that I
just discussed there, they're toothless if you have no capacity
for work. But the moment you have some capacity for
(17:11):
any kind of work, these requirements become very important. And
it can lead to. Yeah, like I said, the suspension
and or and cessation of payments if, if, if the
insurer takes the view that you aren't trying your best.
S2 (17:23):
If you could give, I guess, one piece of advice
to someone who is on worker's compensation. What would be
your most encouraging, best piece of advice that you could
give to someone who feels stuck in the mess of it?
S3 (17:38):
I definitely think it's great to have a job, so
if you can get a job, like if you're fit
to work and you can get a job, it's the best.
I would also say it's important to have a good
doctor and treating team. Okay. And that and that you
understand what they're planning for you and you're involved in
it and you agree with it. And you can then
get all the way behind it. So having the right
(18:00):
treating team I think really matters. And yeah, look, I
think making the most of the claim experience is probably
something else, which I know is probably a surprising thing
to say. But while you're on worker's compensation, there are
certain schemes that you can access that are governed like that,
Sarah pay for. I know that, Sarah. You know, you
don't probably interact with Sarah that much. They're more the
(18:22):
regulator for the insurer. But they do have some schemes,
like retraining and some other related schemes that help with getting,
you know, back to work. I usually say to people
at the start, look, um, if you can get get
back to work, it's good. We'll help you if you can't.
But I really do like to think, um, yeah, going
getting a job eventually is a is a beautiful thing,
(18:43):
but I know that not everyone can. That's what insurance
is for, is it's a safety net. But, you know,
look into what you can do to make the most
of it while you're on it.
S2 (18:52):
Thank you. Kevin.
S1 (18:53):
Today's guest was Kevin Sawyer's senior associate at the Walker
Law Group. You can contact the Walker Law Group at
Walker Law Group. Com.au. That is Walker law group. All lowercase. Com.au.
If you'd like to listen to that episode in full,
listen to episode two of the My Social Support Network podcast.
(19:14):
While you're with us, please enjoy this clip from our
chat with Scott Dougal. He's a personal injury specialist at
Carolyn O'Dea lawyers. He joined us to talk about returning
to work.
S4 (19:25):
Injured worker does have an obligation to be willing to
participate in suitable work, and an insurer must also endeavour
to facilitate that. So injured workers got to cooperate, employers
got to provide suitable work and the insurer is supposed
to coordinate this injury management plan. I think what needs
(19:46):
to be borne in mind is the definition of suitable duties.
It's often overlooked, but that is not about your pre-injury role.
Suitable duties consists of work that's available within that employer,
potentially external employers, that's within the constraints or the confines
of your work cover certificate. And so that could be
(20:07):
in a different department, different role. So if you're back
at work, even if it's in a different department or
a different role, suitable duties isn't about I was a
concreter and that's that's all I do. If you've got
some admin skills or other skills that's totally appropriate. Suitable
duties are a stepping stone in theory on that path
(20:29):
to returning to your pre-injury role, if that's possible. So
it's often not viewed like that. And that means that
people just get told there's nothing available in your section.
Go home and nothing good happens from there. The other way.
Area where the clarity is required is on their capacity
for work, and it is open to doctors to be
a little bit creative around that. Certainly we're talking about
(20:51):
hours that you can do. We're talking about restrictions on
what you can and cannot do, be it physically or psychologically,
but it can also traverse things like reporting structures. I
can't return to work under that supervisor, but I can
return to work in theory with that supervisor. And I've
had instances, and I think it's a good approach where
(21:13):
a GP will say has capacity to return to work
but needs a mediation to resolve underlying issues. So arguably
they're going beyond the scope of what they should, but
it's giving clear direction about the return to work.
S1 (21:28):
That was Scott Dougal, personal injury specialist at Carroll and
O'Dea lawyers. You can listen to that full interview as
episode 13 of the My Social Support Network podcast, Returning
to Work.
S2 (21:39):
We hope you enjoyed the episodes this year. We certainly
enjoyed making them. We will be back in 2025, so
fear not. If you're sitting there thinking, oh my goodness,
how will my 2025 go without my friends of the
MSN community? Then fear not, we are coming back and
we are bigger and better than ever. And it's all
(21:59):
because that very, very first person clicked download. Listen now.
And that is probably what you should do. Tell your friends,
tell your mum. I know my mum listens. She's always commenting.
So enjoy the episodes that we have had in the
past and get ready for a whole new year. Check
us out on our socials. We've got Facebook, we've got
(22:20):
Instagram and we have Rehab Reimagined, a newsletter on LinkedIn
where we explore, unpack and try and reimagine rehabilitation for
the people that we want to help the most, which
is the injured worker. My social support network, where we
reimagine rehabilitation so that you, your family, and your community
(22:45):
can thrive.
S1 (22:46):
The holiday season can be isolating, so if you'd like
to speak to someone, then reach out. There are people
who can be there for you. Lifeline on 13 1114.
Beyond Blue on 13024636 and the 24 hour mental health
access line on 1800 081 501. And if you know a young
(23:11):
person 25 and under, or you are a young person
25 or under, you can access the kids helpline on 1800 551 800.
And of course, if it's an emergency and you require
urgent support, please reach out to ambulance or police on 000.
From everyone at MSN, we wish you a very Happy
(23:31):
New Year. We hope you can have a relaxing, stress
free time doing what you love and we look forward
to seeing you next year.
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