Tag Archives: workplace injury

WOP/WOL Payment of Wages while a Claim is Pended

In the Western Australian workers’ compensation system, it is generally accepted that entitlements such as medical investigations and treatment, and even vocational rehabilitation, can be funded on a Without Prejudice/ Without Admission of Liability (WOP/WOL) basis while liability on a claim is being determined.

A recent situation experienced by one of our clients has caused us to consider WOP/WOL issues in greater depth.

An insurer advised an employer – a client of both Aurenda and the insurer – to pay wages to an injured worker on a WOP/WOL basis even though the claim was pended and the worker was not at work.

When queried on this advice, the insurer stated that they sometimes advise employers to pay wages when in all probability the claim will be accepted. The insurer believes that paying wages will negate the need for the employee to lodge an application at Conciliation and Arbitration Services (CAS), where an order to pay wages may be granted anyway. The insurer also feels that by paying wages in these circumstances, the employee may be deterred from seeking legal advice.

In our experienced opinion, under NO circumstances should wages be paid – even on a WOP/WOL basis – until the claim has been accepted.

Our reasons for this are as follows:

  • If you’re going to pay wages – why pend the claim?
  • If you think in all probability the claim will be accepted – why not just accept the claim, why bother with the investigations?
  • Paying the wages gives no incentive for the employee to make any attempt to return to work – especially in circumstances when the workers’ compensation rate of pay is greater than their base rate of pay.
  • There is no evidence that the employee will not seek legal advice while the claim remains pended.
  • If an application is made at WorkCover for wages to be paid (when the claim is pended) an order is not always granted in favour of the employee.
  • Once wages payments have commenced, it is difficult to stop them – this would no doubt require a visit to CAS at WorkCover in any case. This could also be an incentive for workers to drag out the resolution process.
  • A worker could justifiably assume their employer has accepted liability for their injury if wages are paid prior to investigations taking place.
  • It doesn’t set a great precedent for other workers if everyone who lodges a claim is paid, regardless of whether their claim is accepted.
  • If the claim is accepted, the employer will be obliged to back-pay wages. If the claim is declined, however, and the employer has paid wages on a WOP/WOL basis, it is not possible to recoup these wages from the worker.

We believe that all workers who suffer a legitimate workplace injury are entitled to fair compensation for their injury. Sometimes, however, claims are pended because more information is required to assess the injury and determine liability – and sometimes injuries are not compensable. A very small percentage of workers fall into this situation. The fact that the employer has identified significant cause for concern, in our opinion, means that they should not bear the additional onus of paying wages when there is no legal obligation to do so. The best interests of all parties are served by everyone, including the worker, focusing on a fast determination of liability. A focus on a solution is always Aurenda’s preference.

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May 6, 2012 · 6:55 am

Workplace falls followup

Back in February Aurenda wrote a blog about fall protection in the workplace.

https://aurenda.wordpress.com/2012/02/22/fall-protection-in-the-workplace/

This week two major companies have been fined for their failure to protect their staff from injury.

John Holland has been fined the maximum civil penalty of $242,000 by the Federal Court. The John Holland employee was working at BHP Billiton’s Mt Whaleback mine at Newman on March 19, 2009. The worker died after he stepped onto an unsecured sheet of grid mesh and fell 10 metres to the floor.
There had been two other incidents of injured due to this unsecured mesh earlier in the week and the employer had failed to do anything about it.

http://www.perthnow.com.au/business/john-holland-fined-over-wa-workers-death/story-e6frg2qc-1226338930675

In another incident in NSW, Supermarket giant Coles has been fined $170,000 and ordered to pay legal costs after a worker fell through a ceiling at a store in Sydney five years ago.
The worker, then 42, climbed over a handrail to access promotional material stored on a suspended plasterboard ceiling at the company’s Manly store in August 2007. The worker fell more than two metres, suffering lacerations to the head, whiplash and bruising.

The Coles Management knew that the plasterboard was unsafe to walk on and erected a barrier. However it still used the area as storage and failed to educate the staff as to the danger.

http://news.ninemsn.com.au/national/8458151/coles-fined-over-workers-fall

In both cases, the companies were aware of the dangers prior to the fatality and major injury respectively. If the death or injury of workers is not traumatic enough, both events were over three years ago. New legislation would mean the companies and their directors would be responsible for far larger fines.

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Q. Do I have to lodge a claim with my insurer if an employee sustains an injury?

A.         It is the employee’s choice as to whether they lodge a claim so the employee also has a right not to lodge a claim. You do not have a right to convince the employee not to lodge a claim and you cannot lodge one on their behalf. If an employee chooses not to make a claim, a small business owner should not pay any wages or medical costs because you can be deemed by your insurer as accepting liability.

If an employee decides not to lodge a claim they are liable for all their own medical costs and have to take sick or annual leave. If they don’t have any sick or annual leave left, they don’t get paid. The risk with that is that after two or three weeks and they get the $2000 bill for a CT Scan, they come back and say they want to lodge a claim.

 

Give Aurenda a call on (08) 6389 8900 to discuss how best to manage these types of injuries.

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Fall Protection in the Workplace

The recent death of a man in South Perth who fell from a cherry picker highlights the need for fall protection in the work place.

Aurenda believes fall protection is a simple and effective measure that is vital on every single construction work site in this country. Occupational health and safety in this industry is not a suggestion or something that can be ignored or forgotten because the risks are too great. Not only will members of this industry find themselves in dire economic trouble if they fail to follow the guidelines, the risk of debilitating injury or death is simply too great.

A few cases recently have highlighted the need and sometimes lack of fall protection equipment.

Incident 1
Just recently a NSW court has fined a company and its director after for a young new worker’s death. Despite requiring workers to wear a harness and lanyard when working at heights, a specialist demolition company failed to ensure the fall protection was anchored before workers were exposed to risk. The Court heard that in August 2007, the company began to dismantle the roof of a single-storey suburban house. Workers made an access point through the bathroom ceiling near the edge of the roof, but then had to climb unsecured up the roofing tiles to anchor their lanyards at the ridge board. An experienced worker already at the peak said he saw the new labourer move out onto the tiles, but did not see him fall. The injured worker sustained traumatic head injuries and fractured ribs, and died in hospital six days later.

Incident 2
Another incident occurred in Victoria where fall protection failed to be implemented, caused enormous economic fallout, as well the serious injury of an apprentice. The accident, which occurred in 2010 has only just been resolved. It occurred when four construction workers, including three apprentices, were replacing storm damaged roof tiles on a property. The 2.4 metre high rooftop working space didn’t not have the required guard rails installed, so when one of the apprentices lost his footing, he fell to ground, at which point cement splashed in his eye. While the fall itself did not hurt the apprentice, the cement damage which caused a number of following events, eventually lost him his sight in his left eye.

Incident 3
WorkCover NSW fined three companies over an accident involving serious injuries suffered by a 21 year old man who fell 14 meters off a scaffold at a paper mill. In that incident, safety practices across the entire project were questioned after the man fell through a 430mm gap between the scaffolding and wood chip machine.

For the Western Australian Code of Practise on Prevention of Falls in the Workplace go to
www.commerce.wa.gov.au/worksafe/PDF/Codes_of_Practice/code_falls.pdf 

http://www.aurenda.com

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What expenses am I liable for when someone has a workplace injury?

Q. What expenses am I liable for when someone has a workplace injury?

Managing Director:  The insurance company that underwrites your workers’ compensation policy is liable for wages up to $190,000 and medical expenses up to $50,000 (which can be extended by another $50,000 for a worker with a severe injury). These expenses can be extended by another $100,000 in serious cases, if the worker chooses to take the $100,000 and forego their Common Law entitlement. Rehabilitation can add another $12,000 and there are additional minor expenses, such as travel, that can also be reimbursed.  The consequence of these expenses is that it only takes one significant injury to add significant costs to your claims history. 

Client Service Manager:  A particularly important reminder for businesses with a monthly payroll is that employers must pay an injured worker their wage entitlements within 14 days of the insurer approving the claim. There is a $2,000 fine for failure to do so.

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Counting the Cost

Extensions to Lodgement Timeframes for WA Workers’ Compensation Claims

One of the amendments to the Western Australian Workers’ Compensation legislation that hasn’t received much publicity is the extension to the amount of time that an employer has to lodge a claim with their insurer.

Effective 1 October 2011, employers will have five (5) working days to lodge an injured worker’s completed Claim Form on their insurer. The insurer’s timeframe for making a decision on the claim does not change – they still have 14 days to assess it – and therefore workers may have to wait up to 19 days for their first response from the insurer.

Currently, employers must submit workers’ compensation claims to their insurer within three working days of receiving the completed Claim Form from the injured worker.  For employers who fail to do so, the possibility has existed for the insurer to refuse to cover the initial costs of the claim; in practice, however, this has not occurred.

A significant change for both workers and employers is that it is now an offense for employers to delay the lodgement of the claim. If a late lodgement is reported to WorkCover, the employer may be liable for a $1,000 penalty. (Section 57A(2A) of the Workers’ Compensation and Injury Management Amendment Act 2011.)

What is Aurenda’s perspective on this?

Time and time again, research shows that early intervention results in positive outcomes for both employers and workers who are injured at work.  Extending the lodgement time to five working days will lead to delays in the initial injury management response from some employers, negatively impacting on return to work timeframes and claims costs.

We encourage employers to obtain completed paperwork from injured workers and lodge workers’ compensation claims as quickly as possible.  For the vast majority of claims, getting a speedy decision from the insurer on liability and initiating return to work at the earliest possible opportunity is best for everyone.  In instances where there are questions about the validity of the claim, investigations can be instigated immediately while information about the injury circumstances is still fresh in people’s minds.

The upside of a possible $1,000 penalty for failing to lodge a claim within five working days is the increased motivation of employers not to leave Claim Forms sitting on someone’s desk because they’re ‘too busy to get to it’!

To make sure that you’re not counting the cost of a delay in lodging a workers’ compensation claim, here are some tips:

  • Get your injured workers to complete their Claim Form as soon as possible
  • Date-stamp the Claim Form when you receive it, in case it has been sitting on the worker’s kitchen bench for a few days after they signed it
  • Complete the Employer’s Report of Injury right away, and forward all claims paperwork to your insurer immediately
  • Even if you haven’t received the Claim Form, get in touch with your employee to initiate the injury management process as soon as possible after you become aware that they’ve suffered a workplace injury

http://www.workcover.wa.gov.au/NR/rdonlyres/43CF563E-43C9-483C-A1CC-D691A2F9139E/0/Info_Sheet__Amendment_Bill_2011_Timeframes.pdf

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WA Workers’ Compensation amendments to take effect 1 October 2011

Western Australia’s Workers’ Compensation and Injury Management Act (“the Act”) has been amended on a piecemeal basis many times since its introduction in 1981. This has resulted in a complex and highly prescriptive statute that is difficult to understand and sometimes frustrating to apply. 

In April 2010, after 12 months of deliberation, the government released WorkCoverWA’s recommendations for an improved structure for the Act, to enhance the readability and consistency of the legislation and to improve the capacity of the legislation to accommodate changing circumstances in the workforce. 

These changes will come into effect on 1 October 2011. 

There are three changes that are of particular relevance at a day-to-day level for Western Australian employers: 

  1. Age-based limits on workers’ compensation entitlements are to be removed so that an injured worker older than 64 will have the same entitlements as any other injured worker.  Currently, anyone over 64 is only entitled to one year of wages.  (This change is not retrospective and will only apply to injuries that occur on or after 1 October.)
  2. The amendments will compel an employer to pay an injured worker their entitlements within 14 days of the insurer approving the claim.  There will be a $2,000 fine for failure to do so.  For employers who pay monthly, this is an important consideration in making sure that your systems will allow for possible ad hoc payments to be made between ‘normal’ payroll runs.
  3. The calculation of the rate of pay for the first 13 weeks of incapacity will be based solely on the injured worker’s earnings in the 12 months previous to the injury. Currently, the wage calculation depends on whether someone is on an Award or not, which is confusing and often delays the calculation of wage entitlement.

To make sure that you stay up-to-date with these and many other changes coming into effect, connect with Aurenda for regular updates.

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Filed under Aurenda, Injury Management, Workers Compensation, Workplace Injury