We have seen over recent times high profile media personalities and sports people lose their jobs based on what they have posted or said on social media in relation to political and religious views.
Their stance in response to such sackings may include “it’s a free country”, “I was off the clock”, and “I am entitled to my opinion and my right to free speech”. Whilst Australia is a free country and they are entitled to their opinion, it is not without consequences, and legally enforceable consequences at that.
An employer cannot terminate an employee for expressing a political or religious view, as they will be in breach of the General Protection provisions under the Fair Work Act, however, employers also have a right to protect their business. If the comments made by employees on social media and other public platforms, whether during work time or outside of work hours, are likely to cause the business harm then the employer may terminate the employee’s position. If you have an employee posting questionable content, or you have been terminated for expressing a view, please contact our office because Helping You is Our Business.
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Under NSW Workers Compensation law, injured workers are entitled to a permanent impairment claim if they are assessed at 11% Whole Person Impairment or greater for a physical injury or 15% Whole Person Impairment for a psychological injury. An assessment is carried out by qualified doctors.
On occasion, injured workers will have pre-existing conditions, injuries, or abnormalities of the same area of the body being assessed. When this occurs, a deduction can be made by the Doctor to exclude the level of impairment not related to the workplace injury and therefore not compensable, from the total Whole Person Impairment assessment.
The question has been raised, particularly for psychological injuries, where the previous injury or pre-existing condition or abnormality is asymptomatic at the time of assessment, and whether a deduction should be made for the prior injury. The Supreme Court decision of Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 and [2021] NSWSC 616 provided further clarity on this issue. In this matter the Plaintiff had worked for the NSW Police Force and in 2011 reported a PTSD injury following a colleague threatening him with a firearm. He made a permanent impairment claim and was assessed at 22%WPI. Mr Marks commenced new employment with the Department of Communities and Justice and sustained a further workplace injury with a diagnosis of major depressive disorder. He disclosed he had suffered the prior injury but that it had resolved and he was not having any further treatment in relation to the prior injury. In 2019 he was assessed at 21%WPI. Justice Simpson stated: “notwithstanding the plaintiff’s asymptomatic status at the time of his employment with the first defendant, he was nevertheless, by reason of his earlier experience of PTSD, rendered more vulnerable due to the subsequent harassment and vilification such that the earlier condition was ‘a significant factor’ in the assessment of the extent to which the current condition was caused by the events while he was an employee of [Police].”
Therefore, despite being asymptomatic, the medical evidence is still required to be reviewed objectively to decide whether there is any residual influence of a pre-existing injury on the worker’s current whole person impairment. If you have a workers compensation injury and require advice, please contact our office because Helping You is Our Business.
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Psychological injuries as a result of work are significant workers compensation claims, however there is a potential defence for employers to prevent psychological claims.
The Workers Compensation Act 1987 states at section 11A, “No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
There are three main elements of the test. Firstly, that the injury was wholly and predominantly caused by work. Therefore, if there were other extenuating circumstances, which may have been the cause of the injury, then the injured worker is not successful with passing this test.
Secondly, whether the actions fall under a transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.
Thirdly, what is considered reasonable action by the employer will depend on the facts of the case. For example in the case of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 it was noted that when considering what is reasonable, the employer is not required to consider everything; they are only required to consider the facts that are known to the employer at the time or could be known with reasonable diligent inquiries.
In the case of Green v Secretary, Department of Regional NSW [2021] NSWPIC 37, Member Snell reviewed each element of the test and while she found the first two elements were satisfied, the third element of reasonableness was not. The employer failed to reassure the worker’s concerns in relation to a transfer and therefore the employer’s actions were not reasonable.
If you have suffered a psychological injury as a result of work and the insurer has denied the claim based on section 11A, or you are an employer with an employee that has suffered a psychological injury, please contact our office to speak with one of our IRO approved solicitors because Helping You is Our Business.
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If you are injured at work and require workers compensation, one of the entitlements available to you is weekly payments for the period you are incapacitated to work. Weekly payments are calculated based on your Pre-Injury Average Weekly Earnings (PIAWE) and are the average of your gross earnings from any employment performed for 52 weeks immediately before the date of injury. Therefore if you work in two jobs, immediately before your injury, earnings from both employers are included in your PIAWE.
Recently, as a result of COVID-19 and the subsequent lockdowns that have been required, the question is then raised if you were not receiving income for the total 52 week period immediately prior to your injury, will your average earnings still be calculated over a 52 week period?
The NSW government introduced the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 and specifically Schedule 1, Clause 8EA allows for an adjustment to occur in the earning period if there was a change to the injured worker’s employment arrangements as a direct result of the impact of the COVID-19 pandemic. Specifically the change had to occur between the periods of 23 March 2020 to 27 September 2020, and therefore those affected weeks would not be included in the PIAWE calculation.
This was a welcomed amendment for injured workers, otherwise if you were required to have the PIAWE calculated over the 52 week period you would potentially receive a substantially less PIAWE rate and therefore your weekly payments would be paid at a lesser rate from the commencement of your claim.
If your PIAWE calculation covered the period between 23 March 2020 to 27 September 2020 and your earnings were materially affected due to COVID-19, please contact our office, because it may be the case that your PIAWE is incorrect and therefore your weekly payments are potentially less than what they should be. We have two IRO approved solicitors that can assist with reviewing your PIAWE so please get in contact with our office because Helping You is Our Business.
Under NSW Workers Compensation Law if you require treatment as a result of an injury the workers compensation insurer is required to pay for the treatment if it is considered reasonably necessary. However, there is a process to obtaining pre-approval and payment for expenses related to medical treatment as a result of your injury.
To commence with treatment you must seek pre-approval from the workers compensation insurer. Any request for reasonably necessary treatment should be approved by the insurer within 21 days of that request being made pursuant to Section 60 of the Workers Compensation Act 1987.
If the workers compensation insurer has exceeded this time frame we can intervene on your behalf to obtain a response from the insurer.
If after receiving treatment, the workers compensation insurer has not forwarded payment to your treating doctor or specialist, there are benchmark time periods that apply to the insurer. The workers compensation insurer has 10 working days after receiving a valid tax invoice from your treatment provider to pay the tax invoice. If the payment is not forthcoming, we can assist with making sure your treatment provider is paid promptly and treatment can continue.
If you or someone you know is having difficulty either having treatment approved by the workers compensation insurer or having medical expenses paid by the insurer then please contact our office because Helping You is Our Business.
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Under Workers Compensation Legislation, if a worker is assessed at 31% Whole Person Impairment or greater they are considered a “worker with highest needs”. This classification provides them with an entitlement to receive weekly payments at the Pre Injury Average Weekly Earnings rate, in addition to any potential income they may be earning from employment, provided they still have some level of incapacity. Therefore a worker considered in this class, can potentially be receiving significantly more money per week post injury than what they were earning prior to the injury.
However, the question has been raised by the recent case of Meat Carter Pty Ltd v Melides [2020] NSWCA 307, when does the highest rate of weekly payments start.
In this case the worker was first injured on 14 August 2014. However he wasn’t determined to be a “worker with highest needs” until 9 June 2017, following a Medical Assessment Certificate that assessed him at 60% Whole Person Impairment. The worker was then paid at the special Section 38A rate from 9 June 2017 onwards. He made a claim to the insurer, from the date of injury of 14 August 2014 up to 8 June 2017, a period of just less than 3 years, seeking for the special Section 38A rate to be paid.
The matter went on appeal to the New South Wales Court of Appeal but it was held the worker had not satisfied the definition of “worker with highest needs” until 9 June 2017, and therefore weekly payments were only payable from that date onwards and not from the date of injury.
If you have a workers compensation claim and have any questions in relation to what you are entitled to please contact Everingham Solomons because, Helping You is Our Business.
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In 2012 the NSW Government made significant changes to the workers compensation system. For injured workers who made workers compensation claims prior to 2012 their weekly payments ceased on 25 December 2017, if they had not been assessed at greater than 20% whole person impaired. If injured workers later went on to be assessed at greater than 20% whole person impaired the workers compensation insurer was not reimbursing payments to the injured worker for the period they went without receiving weekly payments of compensation.
However, new case law decided on 17 June 2020 has now overturned any misconception that weekly payments were not payable for the period that the weekly payments stopped up until the assessment of greater than 20% whole person impairment. The two cases are Hochbaum v RSM Building Services Pty Ltd (Hochbaum); Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (Whitton).
Previously it was thought that section 39(3) Workers Compensation Act 1987 provided that an assessment needed to be completed by an Approved Medical Specialist before the weekly payments would be payable and therefore the assessment did not act retrospectively. Following the decision in Hochbaum and Whitton the court has made it clear that subsection 3 only provides a mechanism for assessment and not a time frame. Additionally section 39(2) simply states the only threshold required for weekly payments to continue is for the worker to be assessed at greater than 20% whole person impairment and it does not matter when that assessment occurs.
If your weekly payments ceased on 25 December 2017 and there was a delay in receiving an assessment of greater than 20% whole person impairment, and your weekly payments were temporarily not paid, please contact our office because you may be entitled to reimbursement. We have two WIRO approved solicitors to assist you with your workers compensation claims because Helping You is Our Business.
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As every new employee commences work their employer must provide them with certain documentation and the documentation from the Fair Work Commission has recently been updated. The Fair Work Commission publishes the Fair Work Information Statement, which is available online. This document must be provided to every new employee in Australia before they commence work or as soon as possible after they commence work.
For employees this document provides information about Australia’s employment laws and what governs them. It provides the minimum entitlements to workers known as the National Employment Standards or NES, and also lists the minimum wage for adult permanent and casual employees.
On 19 August 2019, the Full Federal Court handed down a decision in relation to the method of accruing and taking paid personal leave under the NES. This case is known as the Mondelez decision and confirmed that full time and part time employees are entitled to the same amount of paid personal/carer’s leave for each year of employment, being 10 days per year. The case is currently on appeal to the High Court but at the present time the Mondelez decision is law and the Fair Work Information Statement reflects the current law.
The Information Statement also details the requirements for ending employment, what notice period is required and what should be included in your final pay. If the employee believes the termination was unfair they have 21 days to file a claim in the Fair Work Commission.
For Employers, it is important you record when and how the Fair Work Information Statement was provided to all employees. If you require any assistance with employment law matters please contact our office because Helping You is Our Business.
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Coronavirus is the hot topic on everyone’s mind but what happens if you contract Coronavirus as a result of your employment, can you claim workers compensation?
For every Workers Compensation Claim there needs to be an injury and contracting Coronavirus would certainly qualify as an injury. Coronavirus as we have been made aware, currently requires at least a two week quarantine following the end of symptoms to prevent the spread of the virus. Therefore there is an incapacity to work not only while you are sick with the virus but also two weeks following the end of the symptoms.
Some people may simply choose to take personal leave and will have that amount of accrued leave available, while some employers may also pay to have the worker remain in quarantine to prevent other workers being infected.
The question though is, can you claim Workers Compensation?
Under Workers Compensation law section 9A of the Workers Compensation Act 1987 comes in to play. No compensation will be payable in respect to a disease injury unless the employment concerned is the main contributing factor to the injury.
For healthcare workers treating Coronavirus patients this may be a very easy link to prove, provided there is no evidence indicating they were exposed to the virus outside of their employment.
For the rest of society, a case by case review will be necessary.
Other diseases in society such as chicken pox or influenza are not easy to claim workers compensation, simply due to the fact that it is difficult to prove your employment is the main contributing factor of contracting the disease when it is able to be contracted in society generally.
While fortunately at this stage the Coronavirus has not spread to Tamworth or our region, if you think you have a contracted a disease and the main contributing factor is your employment then please contact our office, because Helping You is Our Business.
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One of the disputes workers compensation clients will encounter with insurance companies is whether treatment is reasonably necessary following a workplace injury. The relevant section of the Workers Compensation Act 1987 NSW is section 60. If the dispute is before an Arbitrator in the Workers Compensation Commission they will need to consider the following before deciding on whether treatment is reasonably necessary or not, as noted in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32:
a) The appropriateness of the particular treatment;
b) The availability of alternative treatment, and its potential effectiveness;
c) The cost of the treatment;
d) The actual or potential effectiveness of the treatment; and
e) The acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In the matter of Laing v Sydney Catholic Schools Limited [2020] NSWWCC 19 the timeliness of surgery was considered. The worker had injured her left knee at work on 23 March 2016 and had been advised that a total knee replacement would be required. However no surgeon had requested approval to perform the surgery from the insurer and no medical expert advised that the surgery was required now. It was anticipated surgery would be required at some point but there was no evidence to state that surgery was required right at this point. The Arbitrator could not rule in favour of the worker based on the evidence before her therefore the insurer was successful in disputing the claim.
If you have been injured and the insurer has denied your claim for surgery please contact our office for advice because Helping You is Our Business.
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We have seen over recent times high profile media personalities and sports people lose their jobs based on what they have posted or said on social media in relation to political and religious views.
If you are injured at work and require workers compensation, one of the entitlements available to you is weekly payments for the period you are incapacitated to work. Weekly payments are calculated based on your Pre-Injury Average Weekly Earnings (PIAWE) and are the average of your gross earnings from any employment performed for 52 weeks immediately before the date of injury. Therefore if you work in two jobs, immediately before your injury, earnings from both employers are included in your PIAWE.