Power Restored: WCC Available to Challenge Wage Underpayments for Workers

Since the 1st of July 2019, the Workers Compensation Commission (WCC) has been able to once again allow injured workers to challenge calculations of their Pre-Injury Average Weekly Earnings (PIAWE) – this was the amount of money that the Insurer had calculated an injured worker was entitled to.

In many instances, this amount was incorrect and the injured worker only had the option of challenging the decision in the Supreme Court if they didn’t believe it was correct. In most cases, the costs of that would greatly exceed the amount of money claimed.

Now that power has been restored to the WCC, injured workers can now get funding from WIRO-ILARS to challenge these disputes in the Commission and firms such as Don Cameron & Associates can assist these workers at no cost to the worker.

It is a simple 3 step process to challenge a potential underpayment:

1. If you think you are being underpaid by the Insurer, call us on 1800 627 373.
2. Provide us with information about how much you are being paid by the Insurer, and how much you were being paid before you were injured.
3. We will provide you with free advice on whether the calculation is correct and if it isn’t, we will apply for funding and lodge a dispute challenging the decision of the Insurer.

Like many firms, we have a number of Workers Compensation experts. Unlike many firms, our experts are local people with local knowledge who understand local issues – call us today.

WIRO/ILARS Legal Aid Grants

One of the most common questions from people who contact us for assistance is unsurprisingly, ‘what will this cost me?’.

For those clients who work in NSW and have had an injury at work, it often comes as a surprise to learn that there are no costs for an injured worker when making a claim against their employer. So, who pays the associated costs?

ILARS – Independent Legal Advice and Review Services or otherwise commonly known as Workers Compensations Independent Review Office (WIRO), have highly experienced principal lawyers who assess and manage applications for grants which have been submitted by Approved Legal Service Providers (ALSPs- that’s us!) who provide advice and assistance to injured workers, at no cost to the worker.

WIRO is an independent statutory office which was established in 2012 by the NSW government as part of it’s reforms of the New South Wales workers’ compensation scheme. In addition to providing grants of funding for injured workers’ legal fees, WIRO often also assists workers directly in resolving disputes with the Insurer.

260 weeks later – Medical instability becomes financial instability

In 2012 the NSW Government amended the existing Workers Compensation Act 1987 (The Act) to introduce, among other things, restrictions and structure to the weekly compensation received by injured workers.
Weekly compensation was divided into 4 categories: weeks 1 – 13; weeks 14 – 130; weeks 131 – 260; and post 260 weeks.

This article deals with Section 39, covering the post 260 weeks, and the inequities created by recent decisions. The cases of Hochbaum v RSM Building Services Pty Ltd and the appeal decision is of particular relevance.
The one qualifying factor for continuation of weekly payments of workers’ compensation after 260 weeks is that the injured worker has a whole person impairment (WPI) of 21% or more.

The determination of whole person impairment is to be in accordance with Chapter 4, Division 7 of the Work Injury Management Act 1998 (WIM). This requires that an Approved medical Specialist (AMS), who is appointed by the Workers compensation Commission NSW (WCC), has determined that the injured worker’s impairment is 21% WPI or more.
In most cases, the calculation of the 260 weeks began from 1 January 2013. For many injured workers this meant that the 260 weeks expired on 25 December 2017.

The problem is that some injured workers reached the 260 week mark but hadn’t reached maximum medical improvement (MMI); such that the WPI of the injured worker was not capable of assessment. Weekly compensation payments were ceased by the insurer, at that stage. When the injured worker was ultimately assessed as having a WPI of 21% or more, the arrears of weekly compensation payments – back to 26 December 2017 – were claimed.
Insurers were reluctant to pay these arrears arguing that there was nothing in the legislation to require them to pay arrears of weekly compensation.

The case of Hochbaum v RSM Building Services Pty Ltd came before Arbitrator Bamber.
Allianz had ceased weekly compensation for Mr Hochbaum on 25 December 2017.
The AMS, Dr M Burns, issued a Medical Assessment certificate (MAC) on 16 July 2018 assessing Mr Hochbaum as 21% WPI.

Allianz denied liability for weekly compensation from 25 December 2017 to 15 July 2018.
At first instance Arbitrator Bamber decided that arrears of weekly compensation were available to Mr Hochbaum.
The other side appealed this decision and the matter came before President Judge Phillips.
Judge Phillips decided that weekly compensation arrears were not available to Mr Hochbaum until an AMS determined he was 21% WPI or more. This is the interpretation of the President of the Workers’ Compensation Commission New South Wales and, as such, is the nature of the law at present.

The writer does not agree with this decision as it places the injured worker at an even greater disadvantage than that caused by their life changing injuries.

Don Cameron & Associates has a history of making inroads into unfair decisions in the past, and has achieved many favourable outcomes for injured workers. We will continue to fight these unfair decisions and seek the best outcome for injured workers.

Where there’s a Will, there’s no way…

Often we are able to prompt our clients to make a Will at some stage of their matter which often remains in place long after their case is over. Sometimes, it is the only Will ever made despite their circumstances changing.

Not only should everybody make a will, we should also ensure that if our wishes change, we update it. Too many people think that once they have a will, they don’t need to think about it again, but it is quite the opposite. If you get married or divorced, this will change the validity of a will but what if you have only separated from your spouse? Or what if you made a will whilst in a de facto relationship leaving everything to your partner but that relationship has long ceased.

It is important to note that a Will does not lapse with time nor is it automatically repealed when there is a change of circumstance. You must ensure that you update your Will if you decide that your existing Will no longer fulfills your wishes. Failing to do so may result in somebody that you did not want to benefit from your estate receiving some or all of the assets and belongings that you have left behind.

Dr., No – That Treatment Wasn’t Necessary

By Kate Williams – Medical Law Consultant

In the last ten years a number of medical negligence cases have been brought that allege the medical treatment recommended by a doctor was unnecessary. Unnecessary as the patient’s medical condition did not :

  • Warrant the recommended treatment ;
  • Require surgery as a misdiagnosis was made of the presenting symptoms and
  • Require a medical procedure and upsellling of an elective procedure was represented to the patient as necessary.

Read more »

Fatal Failure to Inspect Truck Tyre

Yadvinder Singh, a 30 year-old truck driver, was hired by ‘Destination Anywhere’ to haul aggregate materials from ‘Granite Construction Co’ to a construction site. Mr Singh drove his dump truck to Granite Construction where an employee loaded it with washed sand. As Mr Singh drove the truck toward its destination, it’s right front tyre suffered a blowout, causing the truck to leave the road and overturn. Read more »

American Awards: No Concussion Protocol = Large Settlement

The Plaintiff, a 14 year old boy played football at Monte Vista High School. During the game, a teammate notified a coach that the Plaintiff did not seem right. Despite the report being made and the Plaintiff’s irregular behaviour, the Coaches kept the Plaintiff on the field. Afterwards, a Coach asked the Plaintiff whether he was alright, and he received a response that he was, however he later began to vomit and then collapsed near the locker room.

The Plaintiff was rushed to the hospital after his parents were called. At the hospital, the Plaintiff underwent a craniotomy (surgical removal of part of the bone from the skull) to reduce brain swelling. Following the incident, the Plaintiff suffers from a severe Traumatic Brain Injury limiting his education, work prospects and prevents him from living independently. The Plaintiff sued the school district, and alleged it failed to properly train its coaches on concussion protocol and failed to ensure the Coaches timely completed state-mandated concussion training.

Another allegation in the claim was that the Defendant failed to obtain medical care for the Plaintiff, identify his head injury, or have medical personnel at the game. The Plaintiff also sued the football helmet manufacturer.

The manufacturer settled confidentially before the trial. The jury awarded approximately $7.13 Million against the School District.

Source: ‘Trial’ Magazine, September 2018, American Association for Justice, Page 14.

Trees, Fences & Neighborly Friction

Trees, noise and fences. Kids and pets. Dust, water and building sites. Just a few examples in the long list of nuisances that give rise to neighborhood complaints. And historically they have been an issue for a very long time. 

But what can you do if a friendly approach is rejected or apparently ignored? What are your rights? 

Trees  

Trees have been a problem ever since the apple tree in the Garden of Eden. Rotting fruit, fallen leaves or limbs, excessive shade, intrusive roots just to name a few. Whilst sometimes local Council requirements may be of assistance, the common law remedy of “private nuisance” may provide an answer. 

A private nuisance occurs whenever your neighbor does something on their property which unreasonably interferes with your “quiet enjoyment” of your land. Overhanging trees that are not kept properly pruned; or have roots that tend to grow onto your property and damage water pipes or even foundations, can cause expensive repair bills. Private nuisance can allow a compensation claim to be made in these circumstances. 

The tree owner is meant to properly maintain their tree and to use some caution when planting invasive species near a property boundary. However, if they don’t, and you get tired of asking, the law has allowed a neighbor to resort to self-help (called “replevin”). Sawing off the offending branches or digging out the invasive roots yourself might be an option. But if you do, beware. The common law does not permit compensation in addition to self-help remedies. If the invasive roots have damaged your foundations this could prove expensive! 

Fences 

Just like Ancient Rome, no fence can last forever. Rust, rot or unfortunately termites are the traditional enemy of the suburban backyard fence. Most neighbors sort it out over a chat over – or in this case through – the proverbial. It might be agreed to postpone the repair work until finances permit. But sooner or later a new neighbor may want the job to be done. 

When a neighbor is concerned about the state of repair of a dividing fence or wants a fence constructed where there has never been one before, they will need to provide a quote and a “fencing notice” before any formal action can be taken. 

The Magistrates Court in Vic and the Local Court in NSW will then deal with any disputes concerning the cost of building or repairing dividing fences. 

The obligation of the neighbors under State legislation are to share equally the cost of a reasonable fence or to repair the fence to the existing standard. If one wants to replace the existing fence with a grander affair, they cannot oblige the other to contribute more than is reasonable in the circumstances. 

This does not apply where a perfectly good fence has been damaged by say a falling limb or a straying car. In that situation the party at fault should pay 100% of the cost of the repair.

We Are Moving!

After a short stint in the Gardens Medical Centre, Don Cameron & Associates (As part of Adams Leyland Chambers) will be moving to new offices in Albury as well as opening a new office in Wodonga.

From the 1st of April 2019, our new location will be at 465 Smollett Street Albury, and the Wodonga office will be located at 69 Hovell Street Wodonga.

We will be having some small celebrations at the new location and we invite you down for a (complimentary) cup of coffee on the 1st April at 465 Smollett Street.

Injured Workers Get New Rights From 1 January 2019

Recent changes to the Workers Compensation laws in NSW are breathing some new life into workers rights and benefits starting from the 1st January 2019. The amendments allow all workers to access free legal assistance to challenge decisions made by Insurer’s about their capacity for work (called a Work Capacity Decision) or under-payments and miscalculations of their wages (often called PIAWE disputes). Read more »