Rachel Schutze, Principal Lawyer, Gordon Legal
Misinformation, misconception and myths about the WorkCover system are preventing ANMF members from accessing an important safety net which allows them to recover, rehabilitate and be compensated for their injuries.
It is important that ANMF members understand what is fact and what is fiction when it comes to WorkCover claims.
When we speak with ANMF members who are injured at work and who are weighing up whether to lodge a claim, many of them say that that there is a stigma about lodging a claim. When they understand that the WorkCover system is a safety net for injured people and exists to support and assist injured workers by providing compensation, rehabilitation and protection of employment for a period of time to assist in their recovery, they start to view it very differently.
The purpose of the WorkCover system is not to punish the employer and lodging the WorkCover claim form is not the same as suing the employer. The WorkCover system is in large part a no fault system. To have a claim accepted, you must be a worker and you must have sustained an injury in the course of or arising out of your employment.
Recently we met with an ANMF member who had suffered a shoulder injury many years ago while playing sport. They had recovered from the injury and had worked for several years subsequent to the original shoulder injury. When at work, they were moving a patient from a seated position to standing with a colleague and the patient, when seated, fell backwards onto their bed wrenching the member’s shoulder and re-injuring it.
The member reported the injury the next day and filled in the incident report form at work. The member thought that when she filled in the incident report and declared the previous sport injury, that if her employer considered it a work injury, they would tell her to lodge a claim form. They didn’t raise it with her and so she assumed that because of the previous sport injury, she could not lodge the claim.
It is really important to know that the definition of injury in the WorkCover legislation includes a ‘recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.
Accordingly, an aggravation or exacerbation of the previous sport injury was in itself an injury in accordance with the legislation.
When she lodged the incident report form at work and again when she filled in the WorkCover claim form she did not name the patient as a witness to the claim. When I asked her why, she said it was for privacy reasons.
It is important to note that the WorkCover legislation specifies that the register of injury (injury reporting register held by every employer) must include ‘the names of witnesses, if any, to the injury’. The Health Privacy Principles in Schedule 1 of the Health Records Act 2001 allows for the disclosure of an individual’s health information if the use or disclosure is necessary for the establishment, exercise or defence of a legal or equitable claim.
In this instance, the patient who had fallen backwards from their seated position was a witness to the injury as was the co-worker and both should have been listed on the incident report form and the WorkCover claim form.
Including the names of all witnesses on the claim form may assist in having the claim accepted and may also be crucial to establishing negligence in any claim for serious injury at a later time.
Once the member understood her rights and entitlements and having lodged the claim, it was ultimately accepted. The member was able to undergo surgery with an orthopaedic surgeon of her choice and the associated medical expenses were paid for under the WorkCover system. She had time off work to recover and rehabilitate and during this time she received weekly payments (wages on WorkCover).
When her treating doctor was of the view that she could return to work on restricted duties, the doctor and the employer worked together to produce a return to work plan with graduated hours and duties to support the member back into work without risking her health or impacting her recovery.
Unfortunately, this member will be left with an ongoing restriction of movement in the shoulder. This will continue to impact her work and her life more broadly. As it is a permanent injury she will also be able to access no fault lump sum compensation under the WorkCover system.
It is important to know your rights and entitlements in the WorkCover system. With the support of the ANMF and Gordon Legal you can understand what your rights are.
It is also worth reminding members of the provisional payment pilots introduced by the Victorian Government. This 12-month pilot is only accessible for public sector nurses and midwives who have submitted a Work Cover claim for a mental health injury. This pilot will compensate eligible workers with up to 13 weeks payment for reasonable medical treatment and services while the compensation claim is being determined.
If you’re injured at work, or become unwell psychologically or physically as a result of work, contact the ANMF Member Assistance via the member assistance form