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Year: 2022

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What is the Workplace Injury Commission?

By Fortitude Legal Admin

On 1 September 2022, the Accident Compensation Conciliation Service changed its name to the Workplace Injury Commission (“WIC”).  The WIC is responsible for attempting to resolve disputes in relation to workers compensation entitlements between an injured worker and the WorkCover insurer via conciliation or arbitration. The introduction of the WIC led to some additional changes for workers including:

  1. Third parties (including lawyers) are able to submit a request for conciliation on behalf of a worker;
  2. Lawyers can appear on behalf of a worker at conciliation (provided that agreement is provided by WIC);
  3. WIC is able to dismiss a dispute from conciliation;
  4. A worker can elect to send a dispute to arbitration (rather than issuing proceedings in the Magistrates Court) after having received a genuine dispute certificate through conciliation.

In our view, the most important of the listed changes is the introduction of an arbitration process for injured workers.  The arbitration process is available to injured workers who were injured on or after 1 September 2022 and the dispute relates to:

  1. Weekly payments;
  2. Medical and like expenses (such as surgery, physiotherapy, or home help);
  3. Superannuation contributions;
  4. Interest on an outstanding amount.

Arbitration is not available in relation to:

  1. Access to information requests;
  2. Impairment benefits claims;
  3. Provisional payments;
  4. Return to work arrangements;
  5. Agreements reached at conciliation or arbitration;
  6. Medical Panel Opinions;
  7. A decision not to accept an application for conciliation or referral for arbitration;
  8. An issue that was previously finalised by a court or arbitrated;
  9. Injuries that happened before 1 September 2022;
  10. An injury that occurs outside of the Victorian Workers Compensation scheme.

The goal of the arbitration scheme is to provide a final decision to workplace compensation disputes that haven’t been resolved through conciliation.  The arbitration scheme aims to provide greater access to justice through a low cost, prompt and informal process and as an alternative to going to court.  The arbitration process allows for the worker, WorkSafe Agent or Self-Insurer to request legal representation at the arbitration.  It falls to the injured worker, WorkSafe Agent or Self-Insurer to make the application to the Arbitrator after electing to proceed down an arbitration pathway.

It is apparent that there may be circumstances where the arbitration scheme is the appropriate avenue for an injured worker to attempt to resolve a dispute.  We would anticipate that this situation may include medical disputes or claims for weekly payments of compensation for a limited financial value.

Fortitude Legal holds concerns about the imbalance in knowledge and power that eventuates from having a trained insurance expert being opposed to an injured worker in an arbitration hearing.

Current arrangements are for arbitration hearings to take place at the WIC premises on Spring Street in Melbourne.  The hearing of a matter is expected to take place in person, although it is anticipated that administrative hearings may be able to be conducted online.  Given that the access to justice is a prime focus of the WIC, it is important that immediate steps be taken to create arbitration rooms throughout Regional Victoria so that regional workers are able to be afforded the same opportunities as those of our metropolitan cousins.

Whilst we understand that there has not yet been an arbitration hearing conducted under the new system, we would anticipate that hearings will take place in the next month or two.

It is important that injured workers understand their rights prior to electing to go down the pathway of arbitration.  If you, or someone you know, needs assistance with their WorkCover claim, please contact Fortitude Legal on 1300 020 618.

 

Can my Employer or WorkCover Agent Attend my Medical Appointments?

By Fortitude Legal Admin

Can my Employer or WorkCover Agent Attend my Medical Appointments?

The simple answer is no. Without your consent, it is a flagrant breach of your privacy.

Many of our clients approach us and query whether their employer or their WorkCover representative is permitted to attend their private medical appointments.

Frequently, employers and their representatives ‘invite’ themselves to attend an injured worker’s private medical appointment. It will often be indicated to the injured worker that it is common practice for them to attend, and it is a practice that is necessary given a WorkCover claim has been lodged.

It leaves the worker wondering whether they will be doing the wrong thing if they refuse, no matter how uncertain they may feel about the prospect of an employer or third party becoming privy to their private medical history.

If your employer or their WorkCover representative asks to attend your medical appointment, you are entitled to say no. That is, even if the consultation relates to a work-related injury or condition.

The Doctor and patient relationship is one of strict confidentiality, much like the solicitor and client relationship. There is no legal obligation for an injured worker to permit the employer, their representative or anyone else for that matter to be present during a medical examination.

Whilst the Victorian WorkCover legislation requires both the injured worker and the employer to engage with and facilitate a possible return to work, those obligations do not extend so far as to permit attendance at the worker’s medical appointments. WorkCover will have the legal power to obtain, through written requests to your doctor, your medical records and reports by virtue of you having lodged a WorkCover claim; but no-one is permitted to attend your confidential medical appointments.

Recent reports from our clients and their treating practitioners indicate that employers and their WorkCover representatives are increasingly using this practice as a vehicle to apply pressure and influence to suit their objectives. This may unfortunately extend to influencing the treating practitioner to amend or adjust a WorkCover certificate, or to agree to a Return-to-Work plan to suit the employer’s needs, and not necessarily those of the recovering worker.

In summary, there is very little to be gained by you allowing an employer or their WorkCover representative to attend your private medical appointment, and a lot to be lost. As common practice at Fortitude Legal, we recommend our clients ensure that the employer and their WorkCover representatives are advised that they are not to attend private medical appointments, under any circumstances.

We consider that greater transparency from WorkCover agents and third parties when speaking to injured workers when seeking to engage in this practice is required.

Should you require assistance with your WorkCover entitlements, contact our office on 1300 020 618 to discuss your rights.

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Truckies Rocked by Suicide Trauma Fight for Justice

By Fortitude Legal Admin

A Category of Forgotten Worker/Road User

 

This is an extremely distressing topic for us to raise, but we feel that not having the debate is to sit back and perpetuate a failure of the law and insurance for a category of hard-working, everyday people.

It is a topic that involves the tragedy of suicide, so if this causes distress please take care in reading on and seek help where required – it is not our intention to cause upset.

Our community has become very good at suicide prevention at the outset, with excellent local medical and allied practitioners working over-time to assist struggling people. However, where a situation arises in the course of someone’s employment on our Victorian roads, the law in our view fails workers and creates an abyss for them.

Our clients have been exposed to the very tragic circumstance of pedestrian suicide by truck. There is no doubt the struggling person did not intend to cause harm, and our clients have been ‘blameless’ in an unavoidable situation while driving heavy vehicles. There is devastation which impacts the whole community. A life is lost, families are shattered and a worker effectively loses their life too. So, legally what happens next?

The injured worker/driver will suffer severe nervous shock injury. They will be entitled to receive limited ‘no-fault’ compensation benefits under the WorkCover scheme. More often than not, their psychiatric injury is assessed under an almost unattainable threshold of 30% to qualify for an impairment benefit lump sum. It is difficult to envisage much worse that a person could be exposed to, yet these assessments fail them.

The injured worker/driver will most likely satisfy the “serious injury” threshold in the TAC legislation and will make out the elements of a common law claim for damages – but where do they go? The employer has often done nothing wrong; the TAC are only liable to indemnify a party for negligent acts arising out of the driving or use of a motor vehicle. The pedestrian’s estate will often be insufficient (and our clients do not wish to go down that path in any event), and rarely will a pedestrian be covered under the public liability component of a home and contents insurance policy (noting: (a) there may be none; and (b) there are exclusion clauses in such policies – similar to problems we are seeing with the E-Scooter cases).

The blameless injured worker/driver is then left with ‘hollow’ rights and falls into financial ruin if they are unable to return to work. This is the aftermath the law has failed to deal with.

We are calling for consideration of some form of extension of limited indemnity from the TAC as a nominal Defendant against which the blameless worker could claim some damages in this very strict and limited category of case involving a pedestrian and a driver of a heavy vehicle in the course of their employment when confronted with this known, but under-reported, ‘occupational hazard’. We are not suggesting comprehensive coverage for all incidents involving motorists and pedestrians – that would be an impossible burden for the very well-run TAC scheme. However, the reality is that in this situation there is “double insurance” (both WorkCover and TAC premiums being paid) with no benefit for the worker.

This is one potential solution; it may not be the ultimate solution, but we hope to trigger a debate. To remain silent on this issue is to fail these workers/road users. If you believe in the rights of Victorian workers and road users, please join us and speak up for them – we have to at least try something. Call us crazy, but the public feedback has been enormous.

This is a legally and emotionally complex issue. However, we are of the view that this is precisely what the law needs to deal with – it is no excuse for the law to be missing in action. If the law is not working for our people, it is not working properly in this space.

 

If you or anyone you know needs help call:
Lifeline on 13 11 14
Griefline on 1300 845 745
Kids Helpline on 1800 551 800
Beyond Blue on 1300 224 636
Headspace on 1800 650 890
Mensline Australia on 1300 789 978
Care Leavers Australasian Network (CLAN) on 1800 008 774
Head to Health at headtohealth.gov.au

 

Autonomous car

By Fortitude Legal Admin

Yesterday’s horrific transport accident in Armadale which left a woman in a critical condition at The Alfred Hospital after being struck by the driver of a vehicle allegedly on Autopilot, is a stark reminder of every driver’s need to understand the capabilities of the technology they are using and their non-delegable duty to be responsible for the safety of others whilst they are in charge of a motor vehicle.

With surging petrol prices and an increasing take-up in vehicles with automation systems, it is imperative that the technology is not misunderstood for more than what it is, and that drivers are educated in the use and limitations of their vehicle.

Levels of Autonomous vehicles

The Society of Automotive Engineers (SAE) developed an industry standard scale dividing autonomous vehicles into six levels with Level 0 having no autonomous features and Level 5 vehicles being fully autonomous ie:  not requiring a driver.  In 2021 the SAE published an update to its definitions to clarify that Levels 0-2 are “driver support features” requiring the driver to still be heavily involved with the vehicle’s operation.

There are a number of manufacturers currently incorporating automation systems into their vehicles including Tesla, Mercedes, GM and Volvo, but these are what are known as Level 2, which means that whilst the car can control some functions such as steering and speed on a marked highway, the driver still has to be in control of the vehicle.

Tesla Autopilot function

The vehicle in question in yesterday’s accident was reported to be a Tesla Model 3.  Whilst Tesla asserts that the Tesla Autopilot function enables the car to steer, accelerate and brake automatically within its lane, Tesla’s own site points out that the “Autopilot features require active driver supervision and do not make the vehicle autonomous”.

Your responsibility

Whilst we cannot comment on the specifics of yesterday’s accident, drivers remain the sole person responsible for the safe driving of the vehicle under their control regardless of the make, model or the technology it utilises.

“Whilst yesterday’s accident is reportedly the first case involving a Tesla for Victoria’s major collision unit, in my opinion, it would be a tenuous defence for any driver to rely on an argument that their vehicle manufacturer was in some way responsible for an accident in circumstances where the use of the technology is outside the guidelines indicated by the manufacturer, and where the driver has failed to uphold his or her responsibility in the safe driving of their vehicle.

We watch with great interest as to the precise type of data from the vehicle’s operating system the Major Collision Unit might able to obtain, as we expect this will become a significant area of enquiry in matters concerning automated vehicles involved in serious collisions for both criminal investigations but also the cases we deal with, being civil claims for personal injury damages involving the TAC” said Ms Blond, Managing Director of Fortitude Legal.

Your rights if injured

As with all transport accidents, drivers, regardless of the technology of their cars, are insured for injury to others through the Transport Accident Commission.  The Transport Accident Scheme provides for compensation to those injured including:

 

  • Loss of earnings;
  • Medical and like expenses; and
  • Lump Sums of compensation which can be in the hundreds of thousands of dollars for those injured in negligent circumstances.

 

Fortitude Legal is an Award winning law firm specialising in obtaining compensation for those injured in transport accidents.

 

Contact us for a free, no obligation chat on 1300 020 618

 

Injury involving an e-scooter?

By Fortitude Legal Admin

The Ballarat Trial

With Ballarat being the first regional location to commence a 12-month trial of the shared electric or “e-scooter” in December 2021, it took as little as 3 days for issues to arise.  According to The Ballarat Courier, problems are emerging placing pedestrians and road users at risk.

Following a rider crashing through a shop window while riding and e-scooter, The Ballarat Courier, on 22 December 2021, reported that Ballarat Health services are “collecting data” during the trial period.

The trial works by allowing riders to book and use the e-scooters through the “Neuron Mobility App”.  Payment is dictated by which option you select.  A Driver’s Licence is not required.

The trial proposes to restrict the e-scooters to bicycle lanes, bicycle paths, separated and shared paths and roads with a maximum speed of 50kph (the e-scooters however are limited to travel at 20kph).  Riders breaching certain rules can face fines.

Use of the e-scooters requires you to agree to “Terms of Service” and “Riding Rules” and failure to do so will likely cause the attached insurance to become invalid, but more on that below.

Issues Arising

Various reports have already emerged of people suffering injury as a result of their foray into riding e-scooters.  The Ballarat Courier recently reported that in other countries there have tragically been deaths.

For our team at Fortitude Legal, as personal injury lawyers, we see injuries ranging from minor to catastrophic every day.  We see injuries occurring as a result of accidents involving cars, trucks, trains, trams and buses.  When you are injured in a “transport accident” as defined by the Transport Accident Act however, you may be entitled to compensation including loss of earnings, medical expenses and in some instances, lump sum compensation which can be significant.  This insurance is paid from motorists’ registration.

There has been much debate in recent years regarding the coverage for cyclists under the transport accident scheme and whilst coverage for cyclists is still limited, our Principal Lawyer, Tom Burgoyne, was instrumental in having the law changed to expand the protection for cyclists injured on the roads, colloquially known as “Rory’s Law”.

E-scooters are not included in the definition of “transport accident”.  What this means is that if a person sustains injury as either the rider of the e-scooter or a third party, they are not covered under the transport accident scheme (unless the accident also involves a vehicle that is covered by the Transport Accident Act).

Insurance?

So, if you are injured as a result of the use of an e-scooter, whether as a rider or otherwise, where does that leave you?

Whilst e-scooters have attached, an insurance policy for personal accidents and personal liability (i.e.:  injury to others), we have had a look behind the policy’s terms and hold concerns about the value of the insurance and exposure to people injured as a result of the use of an e-scooter.  Of course, only time will tell.

The company behind the e-scooters website states that their insurance includes “both personal accident and third-party liability cover to both Neuron riders and the broader community”.

However, as with any insurance policy, there are exclusions to coverage dictated basically by the driver’s use of the e-scooter.  Those exclusions are contained in the “General Exclusions”, “Terms of Service” and “Riding Rules”.  In short, if the rider is in breach of matters included within those sections of the insurance, or any other relevant laws and bylaws applicable in the area in which they are riding, they will likely face an argument by the insurer that there is no coverage.

Suffice to say, the exclusions are broad and include but are not limited to instances where the rider:

  • fails to wear a helmet while riding;
  • is under 16 years of age or 75 years or older;
  • is under the influence of alcohol or other drug while riding;
  • rides with deliberate recklessness;
  • rides with a passenger;
  • rides the e-scooter for commercial use;
  • rides an e-scooter not under their own account;
  • is carrying more than 10kg in total;
  • is not wearing covered footwear;
  • is carrying items that are considered to impede their ability to safely operate the e-scooter;
  • is using headphones, earphones, earbuds, a headset or other listening device while riding; or
  • is riding in adverse weather conditions.

Whilst they are arguably choices made by the rider, the potential lack of insurance not only impacts them personally, but anyone they may injure when riding the e-scooter, for they may not be insured for third-party liability.

Curiously, the terms suggest that a rider “should give consideration to obtaining [their] own insurance”.  In some instances, a person may be covered under their Home & Contents insurance policy if they negligently cause injury to another, but once again, that is not always the case.

The Upside

On the upside, there is at least a policy of insurance attached to these e-scooters and providing no exclusion clause is activated, the Policy provides cover to a person injured including but not limited to:

  • Weekly injury benefits where a person is suffering from temporary total or partial disablement affecting their ability to work;
  • Death and capital benefits for permanent injuries;
  • Benefits for broken bones;
  • Cover for personal legal liability should you injure a third party and they lodge a claim against you for their injury or property damage, including legal costs (subject to conditions);
  • Accommodation and transport expenses;
  • Childcare;
  • Medical expenses;

…and various other expenses.

According to the City of Ballarat website riders are “covered” by Neuron Mobility’s third-party rider liability insurance that “protects and reassure[s] riders as well as the wider community”.  Only time will tell whether Neuron’s insurer seeks to rely on the exclusion clauses when claims are made.

If you or someone you know has sustained injury and/or financial loss connected with an e-scooter where you were not at fault, please call us for a no obligation chat.

At Fortitude Legal – We’re In Your corner!