The 2013/14 annual report from the Tasmanian Workers Rehabilitation and Compensation Tribunal provides data about the number of disputes and the percentage of claimants who do not contest what is known as a ‘reasonably arguable case’ finding.
There is a low threshold for a reasonably arguable case finding by the Tribunal, as acknowledged by practitioners on both sides of the liability ‘fence’. An insurer can often readily obtain an independent medical report that might question work causation. In my experience, in many cases lawyers advise their clients that it is best to consent to such a finding and put their efforts into the next step in the legal process to establish liability. The figures suggest that relatively few, however, go on to the next step.
Also, the reality, as indicated by the Tribunal figures, is that the number of disputes are rising both in absolute terms and as a percentage of claims.
The question is why is this occurring.
My medical colleagues tell me that their patients say that often the reason is that to pursue a claim there is a $30K risk. Legal firms quote such a figure as the potential cost if they take on the case, and if there is potential to lose (as there always is) the worker might need to cover that cost.
Understandably many claimants ‘walk away’ from a claim when in other respects they might have a valid claim.
It does seem likely that this jeopardy for claimant workers is an important factor, but there are other potential reasons, for example:
Legal advice that the likelihood of success is poor
The claimant might have returned to work in a short period with nothing to gain by pursuing the claim
It is of concern that many claimants who might be eligible for compensation if their case was properly considered might be prevented from receiving due consideration by the cost barriers imposed by the current system.
While I think it is important that claimants make an informed decision about whether to enter the workers compensation system, it is important that there is equitable access for those that choose this option. See my earlier blog posts – Tough Love and the Update on Tough Love
It would be interesting to obtain accurate information about why claimants ‘walk away’ by surveying those claimants who do and see whether the trend of increasing disputes continues when the next annual Tribunal report is released.
I am interested to know what is happening in other jurisdictions. Comments would be welcomed, particularly to get an insurers perspective on this issue.
I walked away, the fight was affecting my health and mine and my husband’s life. I also had advice indicating clearly that invisible pain is too difficult to prove. I experienced this, it is and those working in the system know this. The cost of giving up the fight was not only my compensation but selling our home and moving to begin a new life. Terrifying, the last thing we needed… our last resort and the very thing we personally paid insurance to protect us from in the event we ever had an accident.
As with Soula many injured workers walk away, many are so confused that they simply do not know even their basic rights. many injured workers have no way of understanding the industry jargon.
Injured workers all over Australia should get copies of their compensable file under Freedom of Information- if more injured workers did that one simple thing, the system would have to clean its act up, because the system would know that the injured workers are reading what sometimes are the gutter comments that are made between the “professional” providers.
Soula and Rosemary will no doubt agree when I suggest that “loss of dignity” is a compelling and sufficient reason for a person to exit workers’ compensation systems.
Thank you for the acknowledgment John.
Rosemary I wouldn’t be able to read my file. There’s too much already that I battle daily in my head. So much trauma from within the system… especially as Theo and I try and re establish, re build and settle in a new town. And still, the search for new treatment, the daily pain… no compensation, no understanding, no help… the two of us with everything on the line. It all looks ‘so pretty’ from the outside. That’s the worst abuse of all from this system, that you need to sacrifice your home, everything you worked for, the very things you paid to insure trying to build a way to make a living with just a few able hours a day, Theo under so much pressure to help me do that little.
The other day some local friends joked about Theo and I having bought the medium age down here in our new town… we laughed but it’s really not so funny.
This is my version of ‘I walked away’.
My beautiful Soula I could never ask you to read more of the crap that has created such destruction in your life, I would not even allow Theo to read it- such would be too intolerable for either of you as the very system you put your faith in proved to be nothing more than a sham.
There is no dignity in workers compensation, there is only degradation and misinformation.
Just yesterday I sat in a case conference, the rehab said once more that home help had never been discussed, never been mentioned never this never that.
My own notes show that home help was recommended in 2013, now after checking a report, again home help was recommended by a independent OT at the start of 2014.
The injured worker is not in a financial position to be able to walk away even though walking away would be the best thing for this injured worker to do.