Attwood Marshall Lawyers Compensation Law Associate, Henry Garrett, exposes a horror story where an injured claimant was denied benefits they should have been entitled to, leaving them in the lurch for over 18 months. If you have found yourself in this situation, or had your benefits cut off prematurely, we explain how to have your rejected WorkCover claim reviewed.
Case study
Recently, we acted for a construction worker who was injured on the job about two years ago. The construction worker suffered horrific orthopaedic injuries and struggled mentally after not being able to work and support his family. To rub salt in their wounds, since the work incident, the worker has spent over 18 months fighting WorkCover to get their injuries accepted in the claim, only to be met with pushback. They submitted five reviews to the Workers’ Compensation Regulatory Services.
Fortunately, these reviews were all successful in overturning WorkCover’s decisions to deny the claim. However, the worker should never have had their benefits and treatment suddenly taken from them. WorkCover had engaged the usual panel of ‘independent’ doctors to submit evidence to support denying the claim.
In representing the client, we argued the main issues with WorkCover’s decisions were:
- WorkCover did not consult the worker’s treatment providers before making their decision;
- WorkCover did not contact the worker before making the decision (they received the the decision by email without further explanation provided to outline why the decision had been rejected);
- The ‘Independent’ WorkCover doctor did not see the worker in person; and
- The ‘Independent’ WorkCover doctor received a threadbare brief of reports and records.
This speaks to the huge imbalance of power between the injured person and WorkCover.
Any review to the regulator costs thousands of dollars in evidence and legal work, as well as a three month wait for a decision. Quite often, this means the injured person must turn to family and friends to borrow money or burn through their life savings to support their family. This can ruin people’s lives.
In the case just mentioned, the worker was staunch in their position against WorkCover and followed the legal advice provided to push back and file for a review of all the bogus decisions that had been made in their case.
While the two-year period has taken a significant toll on the worker, they now have access to their full entitlement of compensation and all their injuries have been accepted under the claim.
Rejections are all too common
It is estimated that of the 95,000 statutory workers’ compensation claims that are lodged in Queensland each year, an estimated 4 per cent of claims are rejected by WorkCover. That is roughly 3,800 claims declined each year. Of the 3,800 claims rejected, roughly 2,570 are challenged by claimants who apply to have the decision reviewed by the Workers’ Compensation Regulatory Services.
The Workers’ Compensation Regulator upholds or confirms WorkCover decisions in 59 per cent of cases, leaving an estimated 1,170 rejected claims being overturned or varied in favour of the injured worker.
When you look at the number of psychological and psychiatric claims rejected each year, compared to physical injury claims, the numbers are significantly higher.
In 2020-2021, 51.5 per cent of all psychological and psychiatric claims were rejected by WorkCover. This is a stark difference compared to 3.7 per cent of physical injury claims that were rejected the same year.
The reason behind this big difference could be that when claiming workers’ compensation for a psychological or psychiatric injury, the onus remains on the worker to prove that their employment was the substantive cause of their condition or injury (with exception to first responders who suffer PTSD on the job, who are covered by protections under new legislation introduced in 2020.)
The most common reason for WorkCover denying psychological injury claims is that the psychological injury was the result of the “reasonable management action” of the employer under Section 32 (5) of the Act. Employees often make psychological injury claims because of bullying, harassment, lack of procedural fairness, excessive workload and burnout, or lack of training. However, if an employer can prove that their action was ‘reasonable’, the onus will switch to the employee to once again prove that their injury was not caused wholly or predominantly by the actions of management, but by other work-related factors.
We also often get enquiries from frustrated WorkCover claimants whose income payments and medical expense payments have unexpectedly ceased. This usually happens when WorkCover reassesses the claimant’s injury or illness and closes their claim, despite the employee continuing to battle through their recovery and medical treatment.
Not only does WorkCover cut people off, but their representatives are often quite difficult to get answers from. 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.
If WorkCover has unexpectedly denied or closed your claim prematurely for weekly income payments and medical treatment, do not fret – there are steps you can take to remedy the situation. We understand it can be difficult dealing with insurers like WorkCover, who do not make the process easy. That’s why engaging a specialised compensation lawyer to help you through the process and advocate for you is so beneficial. An experienced compensation lawyer understands how the system works and can support you every step of the way.
Have you had your WorkCover claim rejected? The process to have the decision reviewed
The most common reasons WorkCover rejects a claim is because:
- The injured person is not considered a ‘worker’ under the Act;
- The injury was sustained outside of work hours;
- The injured person did not properly report the incident to their employer;
- The claim was lodged outside of the required timeframe (6 months from date of injury);
- The claim was filed in the wrong jurisdiction;
- For psychological injury – that the condition was caused by ‘reasonable management action’ taken by the employer.
There are many injured workers who receive rejection letters for their claim and do not review the decision or wait too long (the review must be lodged within three months of the decision), even though they may very well have a valid claim.
You may also have a common law claim for damages for negligence against your employer, which in most cases cannot proceed unless you succeed in having your statutory compensation claim accepted by WorkCover.
If you have applied for workers’ compensation and WorkCover have declined your claim or ceased your existing payments, you have a right to dispute the decision by applying to the Workers’ Compensation Regulatory Services.
In Queensland, if you fail to meet the three-month time limitation to request a review, you will not have another opportunity to challenge the decision. In New South Wales and Victoria, the time limitation is shorter, only giving you 60 days to dispute the decision.
IMPORTANT: We do not recommend you complete the review without legal advice.
The review decision is generally made within 25 business days unless the Workers’ Compensation Regulatory Services have agreed to an extension. You will receive a written decision within 10 days after the decision has been made.
I have submitted a request to review WorkCover’s decision – what will happen next?
There are several outcomes that can follow a review of your claim decision. These can include:
- Win: The original decision of WorkCover is dismissed,
- Lose : The original decision of WorkCover is upheld,
- Variation: A variation be made to the original decision,
- Information/Directions Required: Further information or directions are provided to the parties.
Failing to lodge a review request in time
The Workers’ Compensation and Rehabilitation Act 2003 allows the Workers’ Compensation Regulatory Services to extend the legislative timeframes in special circumstances. Unless you can prove special circumstances have contributed to you being unable to meet this timeframe, in most cases, you will not be able to lodge a review outside of the three-month time limitation.
If you have medical appointments or documents that will not be available prior to the expiration of that timeframe, we recommend you submit the application without it, obtain compliance, and then provide the additional information once it becomes available. Often, you will have a few weeks to provide more information once your review is underway.
Unhappy with the review decision? All hope is not lost – you can appeal!
If you have applied for a review of a decision and the decision of WorkCover is upheld, you can choose to lodge an appeal with the Commission.
An application must be lodged with the Queensland Industrial Relations Commission against the Workers’ Compensation Regulator within 20 business days of receiving the review decision.
Once a Notice of Appeal is lodged, the Commission will issue directions for the management of the appeal. These directions will include the due dates when documents must be filed and provided to other parties, and when a conference or hearing will take place.
Attwood Marshall Lawyers – helping injured workers access the treatment and compensation they are entitled to
As a leading Compensation Law firm, our personal injury lawyers are well-versed at ensuring injured workers gain access to their full entitlements when they suffer a physical or psychological injury at work.
We want to help you get the treatment you need so that you can get your life back on track and get back to work.
Whether you want to find out more information about making a workers’ compensation claim, or want to understand your rights after receiving a letter from WorkCover that your claim has been denied, we can review your case and help you understand what steps to take.
Contact our Compensation Law Department on 1800 621 071 any time. You can meet with our Compensation Lawyers at any of our conveniently located offices at Coolangatta, Robina Town Centre, Kingscliff, Brisbane, Sydney, and Melbourne. Book online now.
