Throughout December, we often receive an influx of enquiries from frustrated WorkCover claimants whose income payments and medical expenses have been unexpectedly ceased by WorkCover just before Christmas – at a time when they need those benefits most! Such complaints range from the unexpected or arbitrary nature of WorkCover’s termination of their benefits, to having their desperate calls to WorkCover go unanswered or ignored. Naturally, we would expect that most WorkCover claims managers would refrain from making such unexpected or callous decisions shortly before Christmas – but receiving desperate calls from WorkCover claimants during December never fails to disappoint. The issue regarding getting Covid-19 from or at your workplace or having adverse reactions to the vaccine is very topical and only bound to increase with the ‘opening up’ of the borders and an expected rise in Covid-19 cases. WorkCover usually take a fairly hard line with ‘work related’ medical conditions and often reject claims on the basis that the worker’s employment was not ‘a significant contributing factor to the injury’.
Attwood Marshall Lawyers Partner and QLD Law Society Accredited Specialist in Compensation Law, Jeremy Roche, explains the steps to take if WorkCover rejects or closes your claim shortly before Christmas and discusses the Covid-19 work-related issue.
WorkCover advertises that it remains open over Christmas, aside from official public holidays. This appears to be at odds with the number of workers comp claimants that contact us in December or over the Christmas period to complain that they cannot get a hold of their WorkCover case manager. Most injured claimants deal with physical pain, psychological torment, an inability to earn income, and a requirement to undergo treatment. Christmas for injured claimants and their families are typically difficult enough without them being unexpectedly told just before Christmas that their benefits (weekly income payments and medical treatment) were being cut off by WorkCover, with no apparent assistance or remedy until sometime in the new year.
If WorkCover has unexpectedly rejected or suddenly closed your claim for weekly income payments and medical treatment, do not fret – there are steps you can take to remedy the situation.
The issue of Covid-19 work-related illness or, increasingly, illness or injury caused by having mandatory vaccines as required by your employer has had our phones running hot lately. What is the position with your pay if you are off sick with Covid-19 or suffering a medical condition as a result of having the vaccine because this is required by your employer? They are interesting questions and there is no easy answer. As with all work-related illnesses and injuries, there is a threshold issue of it not just happening at work – your work must be a ‘significant contributing factor to the injury’. As you can imagine, there have been plenty of cases and arguments about this definition and these words over many years.
Workers waiting for a decision on their claim
When you lodge a workers’ compensation claim with Workcover, Workcover considers the following questions before deciding whether or not to accept your claim:
- Has the claim been made within the right timeframe (ie. within 6 months of the accident)?
- Was the person working for the employer when they were injured?
- Is the person considered to be a “worker” under the workers comp legislation?
- Did a work or work-related accident cause the injury?
- Was the person’s job significant contributing factor to their injury?
WorkCover aims to make a decision on whether or not to accept a claim within 20 business days of it being lodged (i.e. about 4 weeks from when you or your employer notifies WorkCover).
Usually, claims are decided upon within that timeframe. Sometimes WorkCover needs more time and they usually contact you verbally and in writing to let you know why. If the time for WorkCover to make a decision has taken too long, you can ask the independent Workers Compensation Regulator to review WorkCover’s reasons for the delay. We also recommend that you contact a specialist workers compensation lawyer to assist you in having your claim accepted as soon as possible.
If you are waiting on WorkCover to decide whether to accept your claim for benefits, you need to ensure that you have provided WorkCover with all relevant information and documentation to make an informed decision. Do not wait for WorkCover to contact you – you need to proactively and repeatedly chase up your WorkCover claims manager to ensure they have everything needed to make a decision. We recommend contacting experienced compensation lawyers who can provide you with advice and deal with WorkCover on your behalf to ensure your claim has the best chances of being accepted by WorkCover at the earliest opportunity.
If you have made a claim for psychological injury, but a decision has not yet been made, Workcover can assist with coordinating early psychological services such as:
- Appointments with your GP
- Counselling or psychology appointments
- Psychiatry sessions
- Psychotropic medication relating to your condition
- Mediation services
- Some hospital costs.
If you are experiencing financial hardship and are still waiting for WorkCover to make a decision on your claim, you may be able to access a crisis payment through Centrelink (Services Australia) or JobSeeker payments if your injury or illness prevents you from doing your usual work. You may be able to access income protection payments or other insurance options.
If WorkCover decides not to accept your claim you can have the independent Workers Compensation Regulator review WorkCover’s decision within 3 months of that decision being made (but no later!). Again, we recommend obtaining legal advice from a qualified workers compensation lawyer as early as possible for assistance. This may prove the difference between having your claim accepted by Workcover at first instance or going through the protracted appeals process to the independent Workers Compensation Regulator. If your claim has been rejected just before Christmas, pick up the phone to obtain legal assistance right away.
If you are unhappy with the insurer’s approach to handling your claim, you can lodge a complaint with the insurer directly.
What you need to know before making a workers’ compensation claim
- If you have suffered an injury during the course of your work, it is important to seek medical attention at the earliest opportunity and inform the hospital, your GP and/or your treatment providers about your injury and how it happened. Make sure you provide your GP with all the information they need to take accurately record what happened to you. You will need to request your GP complete a WorkCover Certificate.
- Notify your employer of your work injury and how it occurred right away. You will have to fill out an incident report form.
- Seek legal advice to understand your rights and obligations and what steps to take next. It can be overwhelming dealing with WorkCover, especially at a time you are already managing an injury that has impacted your day-to-day life and your financial security. Be aware that any statements you make will be documented by WorkCover.
- Obtain any photos or videos of how the accident occurred (eg of faulty equipment etc) and witness accounts (or at least witness contact details) from anyone who witnessed your work injury occur.
- Be prepared that your claim may be rejected. Sometimes, even the most straightforward claims are unexpectedly rejected. If your claim is rejected, you have the opportunity to dispute this decision. It is important to discuss your specific matter with a compensation lawyer who can review your case and determine the merit of your claim.
- Don’t let your employer or anyone else discourage you from making a claim. Every employer in Queensland is legally required to have workers compensation insurance to cover their employees in the event they suffer a work-related injury or illness. This includes if you are injured while travelling to or from work, referred to as a “journey claim”. When you make a WorkCover claim, it is not your employer that pays for your time off work or treatment and rehabilitation costs, but their insurer (usually Workcover).
- The claim for benefits (weekly income payments, medical treatment costs, return to work assistance and an impairment lump sum if applicable) is a “no fault” claim – meaning your injury does not have to be caused by your employer’s negligence or an unsafe system of work. If you were injured whilst working, chances are you have access to these benefits.
- Don’t delay! Time limits apply. The earlier you obtain legal advice, the better.
COVID-19 Work-related illness and adverse reactions to vaccinations
The issue of workers contracting COVID-19 while at work or travelling to and from worksites has exploded in the southern states with thousands of workers impacted by contracting the virus through work related activities. Although we have been shielded to some extent in Queensland due to the closure of our borders, the opening up of the country this week and the recent dramatic increase in cases across the eastern states would indicate that workers contracting the COVID-19 virus is about to dramatically increase in Queensland.
An issue that has not been publicised very much is the number of workers who have suffered adverse reactions from being vaccinated due to mandatory requirements for vaccinations by their employer. For example, workers in state government hospitals, schools, police and other first responders, aged care facilities, and many other large companies require all employees to be double vaccinated. In many cases the date for this vaccination was in the month of December (most teachers need to be double vaccinated before school recommences in 2022). The position with illness or injury suffered as a result of adverse reactions to vaccinations can be a difficult medical causation issue, especially if many hospital staff and doctors are reluctant to relate medical conditions to vaccinations. There are reports that many state government hospital staff and other doctors generally do not report the matter as being related to vaccination for fear that these adverse reactions will deter people from being vaccinated.
However, the position in relation to whether a worker who has adverse reactions related to vaccinations can claim compensation is not straightforward and to qualify you would need to:-
- Establish that having the vaccination was related to your employment (i.e. that your employer had a mandatory requirement for vaccination or strongly recommended or advised that all staff obtain vaccinations); and
- That the illness or injury that you suffer is related to the vaccination. This would need to be confirmed by a doctor or specialist in order to establish that the medical condition or illness was directly related to the vaccination.
WorkCover Qld have a page dedicated to COVID-19 related worker’s compensation issues with frequently asked questions. Click here to find out more.
It is more than likely that workers who contract the illness through their work or alternatively have adverse reactions to vaccinations will have their claims rejected by WorkCover. According to WorkCover Qld, these claims will be treated just as any other claim for a work-related injury. However, the uncertain issues around where or when you contract COVID-19 and/or the medical causation issues in relation to adverse reactions to vaccinations will certainly make these claims difficult for injured workers to navigate on their own. We strongly suggest that anyone having issues with their claims contact a specialist in compensation law as soon as possible. In most cases, we assist injured workers on a “no win no fee” basis.
Attwood Marshall Lawyers – experts in handling WorkCover claims
We remain open throughout the Christmas period, only closing on national public holidays. During this time, we still have our 24/7 phone line available. If you require urgent assistance, you can contact us on 1800 621 071 and one of our team members will get back to you as soon as possible, even on a public holiday!
Attwood Marshall Lawyers practices in all types of compensation claims including workers’ compensation, motor vehicle accident claims, public liability, TPD and superannuation claims, and historical sexual abuse claims. It is our intent to help people and change their lives for the better. When you contact us, you will be greeted with empathy, support and client service that is second to none.