Stress Claims

Monday, January 26, 2009

What is stress?

Stress is an adverse reaction caused by excessive pressure.

Stress in the workplace can be caused by bullying, lack of control over work activities, lack of communication and support from co-workers and management and harassment.

Other pressures that may cause stress are family relationships, financial problems, death and divorce.

If stress is left untreated and goes on for some time it can cause mental and physical illness.

Stress in the workplace

Employers have a duty to ensure the health and welfare of their employees. If your work environment is the cause of stress then you may be able to make a claim for workers' compensation. You should be aware that stress claims are often disputed and can be extremely difficult to prove.

If you are suffering from stress and your work environment is the cause, you should speak to your employer. You should try and identify the cause of your workplace stress. For example:

•  If you are being bullied, you should report the bullying.

•  If your workload is excessive, you should ask for assistance.

•  If you are confused about your role or job title, you should ask for clarification.

•  If you feel you do not have enough control over your work, you should ask for more decision-making rights.

If you employer does not address the cause of your stress in the workplace and as a result you believe your health is suffering, you should speak to your doctor.

Stress claims and workers’ compensation

If your stress is work caused and you are certified unfit or partially unfit by your doctor then you may be entitled to make a claim for workers’ compensation. You should:

•  Seek medical treatment and ask your doctor for a First Medical Certificate

•  Ask your employer for a Claim Form 2B

•  Return the First Medical Certificate and completed Claim Form to your employer.

Your employer has three days to forward the claim form and medical certificate to their workers’ compensation insurer.

The insurer has 14 days to notify you in writing of their decision. The insurer will do one of the following:

•  Accept the claim

•  Pend the claim, or

•  Dispute the claim

If you do not receive the notice within 14 days, you are entitled to the weekly payments you are claiming.

What should I do if my claim is pended or disputed?

If your claim is pended or disputed you should:

• Seek legal advice.

• Continue to seek treatment from your doctor and ask your doctor to provide you with progress medical certificates each time you attend.

• Ensure you keep any medical appointments arranged by your employer.

• Speak to a lawyer before you speak to an insurance investigator.

If your employer disputes your claim, you have the option of lodging an application at Workcover.

If you lodge an application, you will have to prove:

•  That you have sustained a disability in the form of a psychiatric condition.

•  There is a causal connection between the psychiatric disability and your employment.

•  The employment contributed to a significant degree to the contraction of the psychiatric disability.

•  Incapacity for work.

The law does limit stress claims and many factors which cause stress are excluded from the workers' compensation scheme.

More information on stress claims is available from Workcover WA.

Worker’s Application Dismissed

Sunday, January 25, 2009

The provisions providing for common law access under the Workers' Compensation and Injury Management Act (the Act) remain as procedurally complex as they were in the past legislation. Under the current Act a worker who has been assessed as having a  whole person impairment of not less than 15% must register an election to seek common law damages with the Director at Workcover and within 30 days of the Director giving notice that the election has been registered commence proceedings in the District Court.

Last year the Supreme Court of Western Australia dealt with competing applications by a worker and the employer. The worker sought a declaration that the notice in writing of registration of an election to seek common law damages was not  validly given under the Act. The  employer sought a declaration that the notice was validly given. The worker had commenced proceedings in the District Court and if the notice had  been given validly then he had comenced those proceedings out of time.

The Court was asked to consider whether the words “the Director gives the worker written notice”  should be construed as requiring that notice by post be given only  to a worker at a personal address for him or the words allow for the giving of  notice by post to an agent on the worker’s behalf. The worker’s agent in this case  was his then solicitor.

The Court held that under section 93 K(4)(c)(i) of the Act it was sufficient that the Director take steps of whatsoever kind to bring the contents of the notice to the attention of the person to be notified. On this view the  worker had received the notice validly and his application was dismissed.

This case is more interesting for the fact that there was no explanation why the worker did not commence proceedings in time given that the he received the notice from his then solicitors before the expiration of the 30 days in which he was required to commence District Court proceedings under the Act.

 

Pre-Law Course

Sunday, January 11, 2009

In March I am taking up a position as a lecturer in the Pre-Law Alternative Entry Course at Murdoch University. The pre-law program is an alternative entry course to study law.

The pre-law course is designed to attract people who have the intellectual ability to study law but do not have recognized qualifications that would allow them entry to the Law School through the normal channels.

The alternative entry course recognizes that learning for some people takes place outside of formal education. This viewpoint is certainly supported by the number of students who have successfully completed the Pre-Law Course and gone on to win some prestigious Murdoch law prizes.

The course, which comprises approximately the same contact time, workload and rigor of a three point law unit, will consist of:

•    Three lectures covering the Australian Legal System;

•     Two intensive library tutorial sessions;

•     Seven lectures covering the Law of Contract;

•     Two assessable projects;

•     A final exam.

As an advocate of alternative entry programs I am very pleased to have been offered the opportunity to be a part of this program.

The University is currently taking applications for the March course. The course will run on Wednesday evenings from 11 March 2009 to 10 June 2009.

Impairment Thresholds

Saturday, January 10, 2009

Impairment is defined as the loss, loss of use or derangement of any body part, organ system, or organ function. 

Under the West Australian Workers’ Compensation and Injury Management Act (“the Act”) an approved medical specialist must assess and certify that a worker’s permanent impairment level has reached the required threshold before they are entitled to access:

•  damages under common law ;

•  schedule 2 payments;

•  extended medical benefits;

•  specialised retraining.

Impairment thresholds

An impairment threshold is the level of bodily impairment that an injured worker must reach before they are entitled to access certain entitlements under the Act.

Access to common law damages is conditional on a worker being assessed as having a permanent impairment of not less than 15%. Other criteria also apply.

Access to extended medical benefits to a maximum of $250,000.00 is conditional on an injured worker being assessed as having a permanent impairment of not less than 15%.

Access to specialised retraining programs is conditional on an injured worker being assessed as having a permanent impairment of at least 10% but less than 15%.

Workers should be assessed for permanent impairment once their injuries have reached maximum medical improvement. This means that their condition has stabilised and unlikely to change substantially in the next year, with or without treatment.

Common Law Claims

Injured workers who wish to pursue a common law claim in the District Court are subject to strict statutory time limits. The clock starts to run when an injured worker makes a claim on their employer for workers’ compensation.

Workers have one year from the day they make a claim for compensation to elect to pursue common law damages against their employer. This is called the termination day. A worker cannot elect after the termination day.

Within 30 days of receiving notice from the Director at Workcover that the election has been registered a worker must commence proceedings in the District Court.

In some circumstances the termination day can be extended. The request for an extension of the termination day is also subject to the one year statutory limitation.

Extended Medical Benefits

A worker who has been assessed as having a permanent impairment of not less than 15% is entitled to apply for an extension of medical benefits of a further $250,000.00. The worker must apply within five years from the date the claim for compensation is made on the employer.

Workers who apply for an extension of medical benefits are not entitled to pursue a common law claim.

Specialised Retraining

A worker who is assessed as having a permanent impairment of at least 10% but less than 15% is entitled to apply for a specialised retraining program. The worker must apply within two years from the date the claim for compensation is made on the employer.

Workers’ Compensation Settlements

Friday, January 02, 2009

In Western Australia the legislation which regulates workers’ compensation is called the Workers’ Compensation and Injury Management Act  (“the Act”).

Under the Act you are currently entitled to the following:

• Weekly payments whilst you are certified unfit of up to $183,394;
• Medical and Hospital Expenses of up to $55,018;
• Rehabilitation expenses of up to $12,838;
• Reasonable travel expenses to cover the cost of attending your doctor.

Most people who receive an offer to settle their workers’ compensation claim ask at least one of the following questions:

1. Should I settle my claim?
2. What is my claim worth?
3. What happens if my injury flares up after I have settled my claim?

Should I settle my claim?

Whether you should settle your claim will depend upon whether your injuries have healed and your doctor has certified that you have reached maximum medical recovery.

You should not settle your claim if you think you may have future medical problems arising from your work place injury. If you are still receiving treatment for your injuries and you settle your claim you will be responsible for all ongoing treatment expenses and those expenses may be very costly.

What is my claim worth?

Under the Act there is a limited amount of money available for lump sum settlements. Determining the value of a workers’ compensation claim will vary depending on the nature and severity of your injuries and whether you have suffered a permanent impairment.

If your injury leaves you with a permanent impairment you are entitled to be compensated for that impairment. Permanent impairment is expressed as a percentage and must be assessed by an approved medical specialist. The amount of money for a permanent impairment is set by law and contained in Schedule 2 of the Act.

If you have a total or partial incapacity for work you may be entitled to an amount for future weekly payments of compensation.

You may be entitled to an amount for ongoing medical treatment costs.  If you have suffered a permanent impairment and you are unable to return to your pre-injury employment you may be entitled to vocational retraining costs.

All of the above must be taken into consideration in determining the value of your claim.  In addition there may be other factors that may make a claim more valuable or less valuable. An experienced workers’ compensation lawyer will only advise you on the value of your claim after he or she has gathered all of the information about your claim.

What happens if my injuries flare up after I have settled my claim?

If your injury flares up after you have settled your claim then you will be responsible for all future treatment costs. For this reason you should not settle your claim until your doctor has provided you with a final certificate or report stating you have either recovered from your injuries or you have reached maximum medical recovery.