Can my Employer or WorkCover Agent Attend my Medical Appointments?

By Fortitude Legal Admin August 11, 2022

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 July 27, 2022

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

Suicide Call Back Service on 1300 659 467

Headspace on 1800 650 890

Reachout at au.reachout.com

Mensline Australia on 1300 789 978

Care Leavers Australasian Network (CLAN) on 1800 008 774

Head to Health at headtohealth.gov.au

Even if Your Vehicle is on Autopilot – You’d Better Not Be!

By Fortitude Legal Admin March 23, 2022

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.

Injury involving an e-scooter?

By Fortitude Legal Admin February 8, 2022

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!

What do I do when TAC advise me of my eligibility for common law compensation?

By Fortitude Legal Admin December 15, 2021

What does it mean if the TAC advise me I’m eligible for common law compensation?

If you have received a letter from the TAC notifying you of your eligibility to apply for common law compensation, the TAC has done what is known as proactively granting you a serious injury certificate.

One of the functions of the TAC is to pay compensation to people injured in transport accidents, whether they’re the driver of a vehicle, or someone injured by another driver including pedestrians and cyclists. To be eligible for common law compensation you need to satisfy a threshold level of injury (serious injury) and prove that someone else was at fault in causing your accident.

Previously, you would have to apply for a serious injury certificate which can be a long and complex process and almost always requires legal assistance. Recent changes have led the TAC to proactively review files of some injured people before such application is formally made and, where the TAC is satisfied that you meet the serious injury threshold and your injury was caused by someone else, the TAC grant the serious injury certificate without the need for application.

Included with the letter advising you of your eligibility to receive compensation is a serious injury certificate, meaning you are now able to bring a claim for common law compensation which may include compensation for pain and suffering, loss of earnings and loss of earning capacity. The assessment of compensation can be a complicated process and requires expert legal insight. Claims for pain and suffering damages cannot exceed the statutory maximum figure which is currently $577,280. Claims for economic loss cannot exceed the statutory maximum figure of $1,298,980.

Typically, a claim for common law damages will not finalise your right to ongoing support from the TAC to medical and like expenses and as such, these benefits do not comprise part of a common law claim.

What should I do now that I have been notified by the TAC that I have a serious injury and that I am eligible for common law compensation?

As advised in the TAC’s letter, you should now engage a personal injury lawyer to negotiate with the TAC.

At Fortitude Legal our award-winning team are accredited specialists in personal injury law with a focus on obtaining compensation for people injured in transport accidents, like you. It is not a given that the TAC will pay you your maximum entitlement. What you are paid depends upon the material presented to them to outline the nature and extent of your injuries and loss. That’s where our team at Fortitude Legal will work with you to ensure you get your maximum entitlement to compensation in the quickest time.

At Fortitude Legal we operate within the TAC Common Law Protocols. The Protocols are an agreement that outlines how the TAC and our lawyers work together during the negotiation of your claim and they more often than not, ensure a swift resolution of your claim for compensation without the need to go to Court, thus getting the compensation in your hands sooner.

Even though the compensation payable by the TAC in a damages claim is often very substantial, it does not mean that the costs payable by you from your compensation will be. It some instances no costs whatsoever will be payable by you from the agreed sum awarded by the TAC for compensation if you engage Fortitude Legal. Not all law firms in this area will be willing to look after you in this way.

Call us for a free no obligation chat on 1300 020 618.

At Fortitude Legal – We’re In Your Corner!

Exposed to Asbestos Can I Sue?

By Fortitude Legal Admin November 15, 2021

What Is Asbestosis?

Asbestosis is scarring of the inside of the lungs. It occurs from breathing in asbestos dust.

There are different types of asbestos, some more toxic than others but all types of asbestos have been classified as cancer-producing.

When working with asbestos, fibres can be inhaled, the inhaled fibres get trapped in the lungs, eventually causing scarring and stiffening.

In some instances, exposure to asbestos can cause lung cancer or mesothelioma, a rare type of cancer.

The symptoms of asbestosis can occur 10-20 years after exposure and can include:

shortness of breath
crackling sounds when breathing
loss of appetite
dry cough
weight loss
swelling or ‘clubbing’ at the end of the fingers

Why Was Asbestos Used?

Asbestos is resistant to heat, fire and electricity and as such, was a commonly used product in building, construction and insulation, including use in fibro sheeting, drains, roofs and gutters. Asbestos was also used in car parts including brake pads. Asbestos was widely used in Australia from around 1940 to 1987. It is now banned nation-wide.

Who Is At Risk?

Asbestos miners
Trades people who have worked with asbestos
Shipyard, wharf and power station workers
Workers at aluminium smelting plants
Relatives of asbestos workers who have come into contact with the asbestos eg: when washing clothes
People who have conducted renovations of older homes containing asbestos

What Can I Do If Diagnosed With Asbestosis?

Compensation is able to be claimed in relation to asbestosis regardless of when the exposure to asbestos occurred. Claims for damages as a result of asbestosis can include pain and suffering and loss of enjoyment of life, past and future medical expenses, past and future loss of income, care expenses including gardening and nursing care, and out of pocket expenses such as travel to appointments.

In the event that a partner or family member dies as a result of the condition, a family member may still be able to claim compensation for the financial consequences of their loved one’s death.

If you, or someone you know, requires assistance with a compensation claim for asbestosis, contact Fortitude Legal to see the difference that we are able to make for your claim. We will fight for you, explain your claim in clear terms, progress your claim promptly and minimise any inconvenience caused by the claims process.

Call us for a free, no obligation chat.

At Fortitude Legal – WE’RE IN YOUR CORNER

How To Win a Personal Injury Claim

By Fortitude Legal Admin November 15, 2021

As with anything in life, preparation is key to winning your personal injury claim. With a well-honed, award winning team like Fortitude Legal, our years of litigation experience have taught us what to expect when it comes to getting you the best financial outcome in your claim and to anticipate and be prepared for the moves of the Defendant’s lawyers.

Whilst most cases are resolved before Court, it is necessary that your lawyer thoroughly prepares your claim as though it were to proceed, in order to have the ammunition to negotiate with the Defendant’s lawyers. Your lawyers shouldn’t be talking with the Defendant’s lawyers until they are fully appraised of both the strengths and weaknesses in your case.

At Fortitude Legal, our preparation of your case is thorough and methodical. We leave no stone unturned.

Whilst there are many intricacies in each step along the way, the framework to ensure your claim is in the best shape to maximise your compensation includes:

Ensure your injury is properly reported and Claim lodged (where applicable)
Seek all appropriate medical treatment so the full extent of your injury and its consequences are known
Meet with our lawyers promptly whilst your recollection is clear and comprehensive instructions can be obtained
Let us ease the burden and provide you with the confidence to make the right decisions about your claim at the right time
We then investigate, obtain and preserve all evidence required to give you the best chance of success
We will arrange for your injuries to be assessed by the appropriate specialists and obtain the opinions needed to support your various forms of damages/compensation
In WorkCover and TAC matters we will also provide support along the way for any annoying decisions the insurers may make about your entitlements, whilst still progressing your common law claim
We will then endeavour to negotiate the best possible result for you or, where that’s not possible, proceed to Court upon your instruction and take the battle to the Defendant
Once your claim is finalised, we remain here for you. We know that settlement of your common law claim does not always mean the end of your dealings when your claim is either a transport accident or WorkCover so we want to be there for you into the future.

Call us for a free no obligation chat. Don’t muck about with your rights

At Fortitude Legal – WE’RE IN YOUR CORNER!

Finalists – Australian Law Awards 2020

By Fortitude Legal Admin August 10, 2020

Fortitude Legal were again named as Finalists in the Lawyers Weekly Australian Law Awards for the 3rd year running in both the Regional/Suburban Law Firm of the Year Award and the NewLaw Firm of the Year Award.

NewLaw is where law firms adopt a model, process or tool that changes the way we deliver legal services. It works against the traditional notion of a law firm by implementing new processes and technologies that benefit both our clients in the delivery of legal services, and our team in the flexibility it creates.

The Australian Law Awards is regarded as the industry’s most prestigious accolades recognising excellence across the entire legal industry. The awards pinpoint professional development and innovation, showcasing both the individuals and firms which are leading the way in the industry.

Pilot Program for Emergency Workers and Volunteers

By Fortitude Legal Admin June 13, 2019

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

Fortitude Legal Injury Compensation Lawyers

Category: Editorial