Category: Changes to the Law

There is little doubt that our emergency service workers go above and beyond when carrying out their duties to assist, care for and protect individuals and the community when something goes wrong. It stands to reason that the psychological stress and pressure our front line workers can experience in the performance of their duties is significant.

It is therefore a very important step forward in tackling the mental health concerns of our emergency service workers that the Victorian Government has announced the introduction of a 12 month pilot program to enable these workers to access mental health treatment before a WorkCover claim has been accepted.

The introduction of this pilot will go some way to ensuring that these workers are supported and their mental health needs identified and treated from an early stage. Under the current Victorian WorkCover system, it can take many weeks before a WorkCover claim is accepted for a worker to access the treatment they need and even months when the claim has been rejected.

As WorkCover lawyers we see first hand how workers suffering from a mental health injury can experience more stress and even a worsening of their condition when they are not able to access the medical treatment they need at an early stage of their illness. Further, the stress and worry that can come from being out of pocket for treatment costs is likely to be eliminated for many workers with the introduction of this pilot program and may encourage emergency service workers to seek treatment early on which can only be a good thing.

Stage 1 of the pilot program will commence on 17 June 2019 where Victoria Police and Ambulance Victoria Staff and volunteers experiencing a mental health injury will have access to reasonable medical expenses for treatment including GP visits, medication, psychological counselling and psychiatrist appointments.  From 1 July 2019 access will also be opened up to CFA and SES staff and volunteers, public sector nurses, child protection workers, corrections and youth justice workers.

The pilot program is likely to extend to current and former emergency service workers and volunteers. Further, where a WorkCover claim is rejected, emergency service workers will still be able to access reasonable medical expenses for a period of 13 weeks from the date the claim is lodged which is a positive initiative. It is hoped that once the 12 month pilot program concludes, access to payment of reasonable medical expenses will be expanded to all workers injured in Victoria experiencing a mental health injury.

There is still much more to be done in this space to ensure that our emergency service workers are protected, supported and cared for when they experience a mental health injury, but the pilot program is a move in the right direction.

Fleur Jackson

Director and Principal Lawyer

FORTITUDE LEGAL

The Treasury and Finance Legislation Amendment Bill 2018 passed the upper house of Victorian Parliament on 20 September 2018. Yesterday this Bill received Royal Assent becoming law today.

Although the Act has been dubbed Rory’s Law as our client, Rory Wilson, is the centerpiece of it, there are also further beneficial amendments for those who suffer injury in transport accidents as well as for their family members. The full title of the Act really does not do justice to the significance of it!  Here is a summary:

Cyclists:

The anomaly in the legislation has been rectified to ensure that cyclists will now be covered where they strike a stationary vehicle, improved from the previous position where they were only covered where they struck the door of a stationary vehicle, or if they were riding to or from work.

Immediate Family Members:

The definition of “member of the immediate family” will be extended to include Grandparents, allowing them to access financial assistance for family counselling, travel and accommodation expenses to be used where family members are severely or fatally injured in a transport accident. The monetary cap for immediate family members’ travel and accommodation expenses to visit a family member in hospital is set to be increased from $10,780 to $20,000. This extension and monetary increase will be mirrored in WorkCover law.

A further benefit of income assistance will be available to parents who need to take time away from work to visit an injured dependent child who is hospitalised after a transport accident (up to $10,000).

Dependency Benefits to Include Apprentices:

Previously a “dependent child” of a surviving partner of someone who was fatally injured was defined as one who is aged up to 16 or up to age 25 if they are a full-time student. This will now be extended to include full-time apprentices.

Removal of Mandatory 5-year Reviews of Loss of Earning Capacity Payments:

Where an injured person’s level of whole person impairment has been determined at 50% or more, they are entitled to receive ongoing Loss of Earning Capacity payments beyond the usual 3-year mark after an accident. The TAC would however mandatorily review this ongoing entitlement in 5 yearly cycles, putting the person’s entitlement at risk. This has been removed.

Administrator Fees:

Where a person lacks capacity to manage their own financial and legal affairs (a person “under a disability”), it is usual for a VCAT or Court-appointed professional Administrator to be involved. That Administrator is entitled to charge fees for administering the person’s estate. The TAC will now be required to fund these costs.

 

Tom Burgoyne of our Geelong office said “Rory has been a brave and determined client and it has been a privilege to act for him.  His courage in pursuing his rights has triggered great change and it has been most satisfying for me to have played a small role in a collaborative effort by the TAC, the Government and various stakeholders to see the rights of injured Victorians improved.”

We urge anyone who may be impacted by these amendments to seek legal advice without delay.

 

With an inspiring collaborative effort between the Victorian Government, the Transport Accident Commission (TAC) and various stakeholder groups, legislation was last night passed, introducing improved rights for cyclists in Victoria.

Our deserving client, local Drysdale resident Rory Wilson, has made legal history with his case the catalyst for various changes to the Transport Accident Act 1986.

Suffering severe injuries including paraplegia in a cycling accident on 9 July 2014 after colliding with a parked truck in Portarlington, the TAC denied Rory’s claim for compensation due to the then wording of the legislation in relation to cyclists. Rory and his legal team, headed by our very own Tom Burgoyne (pictured here with Rory yesterday), ran test case litigation in the Victorian Civil and Administrative Tribunal and the Supreme Court of Victoria.  The case served to highlight an anomaly in the law outlined in Tom’s article in the Law Institute Journal “Cyclists Beware” https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/Jan-Feb-2018/Cyclists-beware and prompted inspiring lobbying efforts on behalf of Rory and cyclists in general.

The Treasury and Finance Legislation Amendment Act 2018 has as its centrepiece, amendments which ensure that a collision between a cyclist and a stationary vehicle will be covered by the TAC and not just in situations where a cyclist was riding to or from their place of employment.  This has been dubbed “Rory’s Law”.  Importantly, the change is retrospective to Rory’s date of accident on 9 July 2014 so he will now be covered for TAC compensation benefits including medical care. Other cyclists injured in similar situations on and from that date will also be covered.

Rory says: “I am extremely grateful and humbled with the change in the TAC legislation. I have been fortunate enough to have had a lot of local people in my corner supporting me all along. Amazingly, after fighting for 4 years this has happened in a way I never imagined possible”.

Tom Burgoyne states that “Rory and his wife Pauline have shown great resilience over the last 4 years. Rory’s law will now mean Rory, and other cyclists similarly injured, will get compensation relief to ease their burden.   Credit must be paid to the TAC for its handling of Rory’s litigation in a respectful manner as well as then not turning a blind eye to the anomaly it revealed, as well as to the Andrews Labor Government. There has been a real appetite shown to make change for the better. We are very proud this impetus has come from Geelong and the local community has really outdone itself with the support shown for Rory”. 

The team at Fortitude Legal congratulate you Rory for your bravery and determination in this fight.  It has been an honour to be a part of your journey.