Personal Injuries - elringtons lawyers

Canberra Comcare Lawyers

Posted on2, December 20175, October 2018AuthorTom Maling

Commonwealth and ACT public servants are covered under the Comcare system for workplace injuries. At Elringtons, we have the expertise and experience to assist people with Comcare claims, including:

Initial claims
Psychological injury claims
Reconsiderations when Comcare denies a claim
Reconsiderations when Comcare ceases entitlements
Merits reviews at the Administrative Appeals Tribunal
Comcare debts
Federal Court Appeals

Please see the below tabs for more information on Comcare claims or feel free to contact us to speak to Tom Maling.

Injuries and Diseases

You can claim for a frank injury or if your work has made a pre-existing injury or disease worse. The basic qualification is that your work must cause your injury or disease. However, there are slightly different causation requirements for an injury and a disease:

An injury must arise out of your work
A disease must have been contributed to, to a significant degree, by your work

As you will have noticed, the causation test for a disease is more stringent.

The claims process

A worker must notify their employer that they are injured as soon as possible after becoming injured.
A worker must complete a Comcare claim form with a medical certificate. The form is given to your employer, who must then give it to Comcare.
Comcare will consider your claim. They may require you to provide specific information. send you to be examined by an independent medical expert
Comcare must accept or reject your claim. Please note, there are no specific timeframes under the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) requiring Comcare to determine your claim within a specific timeframe. Absent a specific timeframe, they must determine your claim within a reasonable timeframe.
If Comcare reject your claim, you have 30 days from the day you were notified of the decision to submit a reconsideration request. You may ask Comcare to extend this, but it is up to Comcare whether or not to extend the time.
Comcare must affirm or set aside the initial decision. There is no mandated timeframe, but it is their policy to aim for 30 days.
If you disagree with the reconsideration decision, you have 60 days to submit a merits review request at the Administrative Appeals Tribunal.

Entitlements

Comcare Overpayments or Comcare Debts

There has been recent media attention about Comcare issuing debt notices claiming people have been overpaid. Just because Comcare has sent you a debt letter claiming for an overpayment does not necessarily mean you have been overpaid and owe them money.

Elringtons is looking for people who have been sent overpayment letters for a new type of Federal Court claim. We want to help people who, through no fault of their own, have been burdened with a debt claim by Comcare in unfair circumstances. For more information see Comcare Overpayments or Comcare Debts.

Psychological Injuries

There are special laws in the Comcare system limiting the circumstances when an employer is liable to pay you compensation for a psychological injury. If you think you may have received a psychological injury from work, it’s very important you understand the law prior to making a claim.

People who receive a frank psychological injury and those who already have a diagnosis of a mental illness may be eligible for compensation where work has made their illness worse. These types of claims can be quite complex. For more information see our article Comcare and Psychological Injuries.

Tips for workers

We see many workers who have made Comcare claims. Some have done well while others, inadvertently, have dug themselves into a hole. Here are a few tips from our experience to those contemplating a claim:

Comcare is a no fault system, so you don’t need to show that your workplace did something wrong. They may have, but trying to show that work did something wrong may only provide Comcare with more opportunities to deny your claim.
Show that your work caused your injury. If something other than work has impacted on your injury, you must be honest. However, make sure you do not overstate the impact of a non-work event.
Be careful what you put in writing, especially with psychological injury claims. See our article Comcare and Psychological Injuries for more information.
Make a very good record as soon as possible about what happened when you were injured.

Specialist Comcare Lawyers

Comcare claims are different to other workers compensation claims. This is not just because it involves a different piece of legislation. As Comcare is a government body, their decisions come under a branch of law call ‘administrative law’. This differs from ACT and NSW workers compensation systems where decisions are made by private insurance companies. Therefore you need lawyers with knowledge and experience in administrative law. We understand administrative decision making and use this to seek remedies for our clients where:

Comcare has failed to take into account relevant information when making a decision
Comcare takes into account irrelevant information when making a decision
Comcare makes a decision which is not based on evidence
Comcare incorrectly applies law when making a decision
Comcare makes a decision which is not the correct or preferable decision
Comcare fails to make a decision when they are required to

We understand the impact a workplace injury has on your life: physically, emotionally, and financially. Matt Bridger’s experience enables him to provide expert and timely advice to assist injured workers. He is assisted on Comcare matters by Tom Maling, who trained as a Registered Nurse and has worked in the ACT Government. Tom uses his health knowledge to understand your injury experience and government experience gives him particular insight on administrative law issues.

For more information or to make an obligation free appointment, please do not hesitate to contact Matt Bridger or Tom Maling

Further reading

Comcare and Psychological Injuries

p: +61 2 6206 1300 | e: Info@elringtons.com.au

elringtons health law update – bullying and harassment rife in hospitals

Posted on27, August 201715, May 2018AuthorTom Maling

By Tom Maling

A survey of emergency department doctors has found that 49.8% of the 2000 doctors surveyed had been victims of bullying, harassment or discrimination while at work. A quarter of the doctors had experienced these behaviours in the last 6 months.

The Australasian College for Emergency Medicine conducted the survey of its members, and published its results in August 2017. Sadly, the College reported that a significant proportion of its members had been victim of these behaviours more than 20 times.

Every worker has the right to attend work and not be subjected to bullying, harassment and discrimination. The impact these behaviours can have on a person’s health and wellbeing can be significant. We act for far too many workers who have received psychological injuries from bullying, harassment and discrimination in the workplace.

Bullying, harassment and discrimination at Canberra Hospitals has been well published, and this latest survey is further evidence of a widespread problem. The College noted:

“Recent studies have indicated that high rates of discrimination, bullying, harassment and sexual harassment persist in the health sector, despite clear evidence that these behaviours jeopardise patient safety and negatively impact on victims.”

Health practitioners are subject to codes of practice and registration standards. Consumers and practitioners may make complaints to the Australian Health Practitioner Regulation Agency (‘AHPRA’) about conduct falling below the standard expected by the public, or where the practitioner may not be a suitable person to practice. We suggest that bullying, harassment and discrimination behaviour will likely meet these descriptions, and AHPRA has a role to play in eradicating this culture from the health professions and to promote patient safety.

elringtons has helped many workers who have been victim of these behaviours. We have also assisted people to make complaints to AHPRA about health practitioners. Please do not hesitate to contact us to tell us about your experiences and to see how we may help.

Further reading:

For more information or to make an appointment in either our Canberra or Queanbeyan office:

p: +61 2 6206 1300 | e: Info@elringtons.com.au

Workplace Psychological Injuries

Posted on26, July 201715, May 2018AuthorTom Maling

by Tom Maling

Whether you work for a private employer or the public sector (Federal and State) in the ACT or NSW, there are laws which mean you can claim compensation for workplace psychological injuries covering treatment, lost wages and permanent injuries.

In this article we discuss:

What psychological injuries are.
The exclusionary reasonable administrative action rule.
Causes of psychological injuries.

Summary

Even if you had a mental illness before starting work, you may still be able to claim compensation if work has made it worse.
There is a special rule for psychological injury claims limiting when you will be eligible for compensation. This is the reasonable administrative action rule.
Psychological injuries are not just related to bullying and harassment, and you may be able to claim for an injury even if your work did not do something wrong.
You may be able to claim compensation for medical treatment, loss of wages, and a permanent injury, and in some case domestic care and for your pain and suffering.
We are experts in ACT, NSW and Comcare workplace psychological injury claims.

Psychological injuries

ACT, NSW and Commonwealth laws have different workers compensation schemes. Common to each though is a recognition that workers who get psychological injuries (also called mental injuries) caused by work are eligible for compensation. This includes illnesses such as Anxiety, Major Depression, an Adjustment Reaction and Post Traumatic Stress Disorder (PTSD).

If you already had a diagnosed mental illness before starting your work, you too may receive compensation if work has made your symptoms worse. Aggravation of a pre-existing mental illness may entitle you to compensation, providing work has caused the aggravation. There are special rules relating to pre-existing illnesses, which are aimed at ensuring that work actually caused a worsening of symptoms, rather than the symptoms naturally progressing or getting worse. So just because you already have Bipolar Disorder or PTSD, does not mean you may not be entitled to workers compensation.

Exclusionary rule

Commonwealth, ACT and NSW laws all contain a special rule excluding some psychological injuries from being entitled to compensation. There are differences between each, but the general concept is that a psychological injury caused by a reasonable administrative action is not entitled to compensation. So, if your employer reasonably does something such as performance management, counselling about performance, disciplining you, transferring you, or even demoting you, and this causes a psychological injury, then you may not be entitled to workers compensation such as lost wages and medical treatment.

In ACT and NSW workers compensation laws, the reasonable administrative action must be “the whole or predominant cause” of the injury. Under the Comcare system, the action only need be “a” cause, regardless of how small, for the exclusion to apply. The other key point is that the employer’s action must be reasonable in the circumstances, and taken reasonably. Workers need to be very careful about when and how they make claims.

Causes of psychological injuries

Often people think they can only make a claim where they have been bullied, or work has done something wrong. This is wrong! While we have clients who have received a psychological injury following bullying and harassment at work, psychological injuries can also be caused by your normal work duties.

Think about a first responder such as a Paramedic or an Australian Border Force officer who develops a psychological injury as a result of their normal duties. There is no need for their workplace to have done something wrong to them. The same applies for workers such as office workers, public servants, health professionals and tradies: you do not necessarily need to show that your employer did something wrong. If your work brings you into contact with a situation that is shocking or your work is stressful and you are struggling to manage, you may be able to bring a claim.

We can work with you

We are passionate about issues concerning mental health and the law. As experts in workplace psychological injury law, we are experienced in working with clients who have a mental illness. We pride ourselves on developing a rapport with our clients to learn about their experiences and provide outstanding results.

You will work with Matthew Bridger and Thomas Maling. Matt has over 25 years’ experience as a workers compensation lawyer. Tom initially trained as a Registered Nurse and worked in mental health, and has maintained a keen interest in this area as a lawyer. Both Matt and Tom work with clients in ACT, NSW and Comcare psychological injury claims. Please feel free to contact us to discuss your claim.
IMPORTANT: If you (or someone you know) are experiencing symptoms of a mental illness you should seek help from your GP immediately. Alternatively, other resources you may access include:

ACT Mental Health Crisis and Assessment Team 1800 629 354
Lifeline 13 11 14

Medications and Medical Negligence

Posted on16, July 201715, August 2018AuthorTom Maling

By Tom Maling

For anyone considering whether they have a medical negligence claim as a result of a medication error, here are some key points:

A doctor owes their patient a duty of care when giving advice about medications and when prescribing them.
A doctor must review how you respond to a medication and monitor you for side effects.
A doctor must warn about side effects which a reasonable patient would find significant, OR risks which because of your individual circumstances a reasonable doctor would think that you would find significant.
Medical negligence claims can be about a failure to warn about a side effect which or because a medication was incorrectly prescribed.

Doctor’s duty of care

Medications and medical negligence

Medical negligence claims involving medications are different to claims involving single treatments such as surgery. A surgical procedure is a one-off event involving separate components such as pre-surgery advice, warnings and tests, and then performance of the surgery. Medications are different.

Medication treatment is often ongoing and over a long period of time. Imagine you are prescribed a medication by a doctor over many years. The doctor may have given you some advice about the medication when they first prescribed it. Then each time you go back for a new prescription, there may be no further discussion with you about the medication and the risks of treatment.

A doctor’s duty of care requires them to review the treatment and monitor your response for signs of side effects. It is not good enough to warn you at the start, and then fail to monitor your reaction to the medication or progress on the treatment.

Medication side effects

All medications have side effects. Some occur more frequently than others, and some are more serious than others. Some side effects may occur immediately, some may take a long time. For example, proton pump inhibitor drugs such as Nexium are widely prescribed to treat indigestion. In July 2017, a US study found that long-term use may cause premature death, kidney disease and other serious side effects. The risk of injury from these side-effects does not arise immediately, but rather after long-term use

Duty to warn about side effects

A doctor’s duty to warn about side effects extends to a side effect which a reasonable person in the circumstances would think was significant. This accounts for the severity of a side effect, how often it might occur, and a patient’s particular circumstances.

Take for example the drug sodium valproate (Epilim). It is known to carry a risk of birth defects if taken by women who are pregnant. A doctor should warn a woman trying to get pregnant, or who is pregnant and taking Epilim, of this risk. It is a serious risk. However, a doctor treating a female patient who chooses not to have children or is unable to have children, need not be warned of the risk, as that patient would attach no significance to it.

A person’s particular circumstances may require a doctor to warn about a side effect which they ordinarily would not be required to warn about. For example, a patient who only has vision in 1 eye would likely place more importance on a slight risk of harm to their vision than someone who has no sight impairment. Another example is where a person asks particular questions of their doctor about risks of harm and side effects.

Incorrectly prescribed medications

Cases may arise where a person is prescribed a medication which they ought not to take. This may be because of the person’s condition or because of other medications they are taking. Doctor’s are required to be aware of interactions that medications have with one another and ensure you are not prescribed a medication which cancels the effect of another or increases a risk of injury posed by a medication.

Compensation

We can’t restore your good health and wellbeing (we wish we could), but we can get you compensation to make up for your losses, and enable you to pay for your future treatment.

The types of compensation that may be awarded are:

Previous lost wages for your time off work;
If your injuries will affect your ability to work in the future, then your future lost wages;
The cost of treatment, medications, disability aids and pain relief in the past and future;
Care and assistance provided to you by family and friends;
Pain and suffering; and
Loss of enjoyment of life.

Elrington’s health law

Matt Bridger and Tom Maling represent clients in medical negligence claims. We act for Canberra and the surrounding regions including NSW residents from Queanbeyan, Batemans Bay, Goulburn, Yass, Cooma, Bega and Merimbula areas, in both ACT and NSW claims.

Matt is an Accredited Specialist in Personal Injury Law and has over 25 years of experience representing people in medical negligence matters, including small claims right up to multimillion dollar catastrophic injury claims. He has great medical knowledge across a whole range of areas and has conducted cases in general surgical, birth and obstetrics, dental, orthopaedics, pharmacological and cardiology negligence. Tom completed training as a Registered Nurse and has experience in hospitals and nursing homes. He also represents our clients on all medical negligence and treatment dispute claims. Our experience means we have insight into health issues, health service delivery, and most importantly our client’s experiences.

Please contact Matt Bridger and Tom Maling if you wish to discuss your circumstances and how we can help.

Further reading:

To contact Matt or Tom or to make an appointment in either our Canberra or Queanbeyan office:

p: +61 2 6206 1300 | e: Info@elringtons.com.au

Comcare and Psychological Injuries

Posted on5, July 201730, July 2017AuthorTom Maling

by Tom Maling

Given the amount of time we spend at work and the high rate of Australians who experience a mental illness each year (approximately 4 million), it’s hardly surprising that work often causes a mental illness, or makes someone’s mental illness worse.

There are special laws in the Comcare system limiting the circumstances when an employer is liable to pay you compensation for a psychological injury. If you think you may have received a psychological injury from work, it’s very important you understand the law prior to making a claim.

Psychological injuries

Psychological injuries caused by work include Post Traumatic Stress Disorder (PTSD), Adjustment Disorders, Anxiety and Depression. However, those who already have a diagnosis of a mental illness may also be eligible for compensation where work has made their illness worse. This is because the law says that compensation may be paid where an illness is aggravated by someone’s work.

What is the law?

The relevant law for Comcare matters is the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’). Under the Act, injuries which are caused by an employer’s “reasonable administrative action” are not eligible for compensation.

The big issue for workers here is that if a cause of the psychological injury is a reasonable administrative action, the whole claim will fail. So, if work has made your PTSD symptoms worse and one of the reasons is a reasonable administrative action, then your claim fails. Even if it’s only a 10% cause, you are not eligible for compensation.

Often workers battle on for a long time after they receive their psychological injury, or don’t seek help straight away. The final straw may be an action by the employer which is later considered to have been a reasonable administrative action. Unfortunately, these workers are then excluded from compensation for medical treatment and time off work.

What is a reasonable administrative action?

Some key points are:

The action must be related to the conditions of your employment and not your everyday tasks. So, giving you tasks to complete or telling you how to complete your work are generally not administrative actions. However, performance appraisals, discussing your pay and conditions, or directing someone to not come to work until they are certified as being fit, are administrative actions.
The administrative action must be taken in a reasonable manner. This takes into account the actual action, how it was taken, the facts surrounding the action and how it impacts you. Basically, everything. However, just because there was more than one way of doing the action does not mean it was not taken reasonably.

Get advice

As you can see, the reasonable administrative action rule provides a defence for employers when a worker suffers a psychological injury. Given the very wide scope of the rule, it is imperative that claims are made at the right time, as the consequences for a worker are very harsh.

Therefore, before you make a claim for a psychological injury, you should seek legal advice and not delay. Often, a claim which is appropriately made can show that a reasonable administrative action actually had no bearing on the injury, or that an action was not reasonably taken. Alternatively, a claim can be made before the employer can say it was caused by a reasonable administrative action.

Matthew Bridger is an experienced Canberra Comcare lawyer. He is assisted by Thomas Maling, who has a particular interest in mental health issues and workplace psychological injury claims. Please feel free to contact us to discuss your circumstances and how we can help.

IMPORTANT: If you (or someone you know) are experiencing symptoms of a mental illness you should seek help from your GP immediately. Alternatively, other resources you may access include:

ACT Mental Health Crisis and Assessment Team 1800 629 354
Lifeline 13 11 14