Case Study: 13 wins for the worker over a 7-year fight

Case Study: 13 wins for the worker over a 7-year fight

By Andrew Wright 

After working in plaintiff employment law for over 20 years’, one of the most important qualities required is an indomitable attitude to fight for your client’s rights. Whilst this field of work provides an ongoing set of challenges, getting wins for ‘the little guy’ make it certainly worthwhile.   

A recently closed case I had the privilege to work on was Workers’ Compensation Regulator v Adcock [2022] ICQ 016. Dubbed ‘a world record’ for the number of appeals occurring over the past seven years with regards to Mr Adcock’s claim for worker’s compensation, there is cause for celebration after winning 13 of 13 appeals against Work Cover/ Workers’ Compensation Regulator.  

The Facts  

Mr Adcock was working as a FIFO camp cook in Roma, Queensland. He sustained an ankle injury from slipping over whilst carrying a box out of a freezer on 25 August 2015. As he was not capable of resuming employment, Mr Adcock made a claim under the Workers’ Compensation Act 

Mr Adcock’s injury was accepted as compensable under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). However, WorkCover consistently tried to cease Mr Adcock’s weekly payments and benefits, as well as backdate the cessation by two years. 

Timeline of Events
  • 25 August 2015 – Date of injury.  
  • 29 October 2015 – Mr Adcock lodged application for workers compensation.   
    • WorkCover rejected workers compensation application.  
  • Mr Adcock submitted review application to the Employer (‘Respondent’)  
    • Respondent referred matter to WorkCover for further investigations.  
    • WorkCover rejected Mr Adcock’s application, and the Respondent confirmed this decision.  
  • 22 September 2017 – Mr Adcock appealed rejection again to QIRC.  
    • QIRC set aside Respondent’s rejection and ordered that Mr Adcock’s application for workers’ compensation be accepted.  
  • 20 January 2018 – WorkCover terminated Mr Adcock’s entitlement to compensation.  
    • Mr Adcock applied for review of decision.  
    • Respondent set aside WorkCover decision and determined that Mr Adcock had ongoing entitlement to compensation.  
  • 16 May 2018 – WorkCover terminated Mr Adcock’s entitlement to compensation again.  
    • Mr Adcock applied for review. 
    • 24 July 2018 – Respondent referred matter back to WorkCover for further investigations.  
    • Following further investigations, WorkCover terminated and backdated Mr Adcock’s entitlement to weekly payments of compensation and medical expenses to 26 August 2016, only 1 year and 1 day after the work injury. WorkCover communicated this decision on 6 November 2018.  
    • Mr Adcock sought review of the decision by the Respondent who determined that Mr Adcock was not entitled to payments of weekly compensation after 26 August 2016, and only had entitlements to medical expenses and hospitalisation until 21 February 2018. 
  • 25 June 2021 – Mr Adcock successfully appealed decision, finding that his incapacity had not ceased until 30 November 2017. Ongoing medical benefits were awarded until 27 February 2018.  
    • Decision was appealed by Workers’ Compensation Regulator.  
    • 24 May 2022 – The appeal was set aside and Mr Adcock was entitled to workers compensation until 30 November 2017, and medical benefits until 27 February 2018.  

The Outcome  

In the main two-day trial on 26 and 27 October 2020, Adcock v Workers’ Compensation Regulator [2021] QIRC 227, the Commission considered evidence of four expert medical witnesses, evidence from Mr Adcock himself, and another witness we called upon.  

Mr Adcock had the onus of convincing the Commissioner that his injury and subsequent disability gave him an incapacity for work preventing him from working as a cook, or in any other position which, based on his work history, might reasonably be available to him.  

The Commission considered previous cases which similarly dealt with the legal concept of incapacity for work. The Commission found that Mr Adcock’s ability to work ‘in any suitable employment’ was diminished or taken away entirely, making him ‘partially’ or ‘totally’ incapacitated.  

After years of arguing (and succeeding) on behalf of Mr Adcock it was found that WorkCover and/or the Workers’ Compensation Regulator had erred in their decision to cease payments to my client. The final appeal by the Worker’s Compensation Regulator was dismissed, and Mr Adcock was awarded workers compensation until 30 November 2017, and medical benefits until 27 February 2018.   

 

Client Experience 

“After 13 appeals of my workers compensation matter across seven years, I am very relieved it is over. Under Andrew Wright’s guidance I kept at it and stuck to my guns, and Andrew stuck to his. I couldn’t have asked for a better person to represent me. 

Andrew’s level of service was above exceptional, he always kept me up to date. I’d send him a text and he would respond straight away. The whole team was brilliant, including the reception staff. I really couldn’t give the firm more kudos.  

I want to show my kids and grandkids that I fought for the worker against the ‘big guys’; it was Andrew and his team who helped me do that.”Malcolm Adcock, Plaintiff 

 

Andrew Wright, Partner at Boylan Lawyers, directs the employment and industrial law practice areas. Mr Wright’s advantage is that he can act on matters within all facets of employment law, a practice that is uncommon despite the overlapping issues clients face. Mr Wright covers all employment issues from industrial relations, workers compensation, sexual discrimination, equal opportunity, to superannuation claims. He has the expertise to decide what application and jurisdiction (State or Commonwealth) will be of most benefit for his clients without ‘double dipping’ or missing out on any entitlements.  

If you have an employment law matter you would like to discuss with Andrew Wright, call us on 08 8632 2777 to arrange a 30-minute consultation.   

The End of COVID Mandates

The End of COVID Mandates

 

By Andrew Wright, Partner at Boylan Lawyers

 

At 12:25pm on 24 May 2022, the Emergency Management Declaration made pursuant to the Emergency Management Act that allowed South Australia’s Police Commissioner Grant Stevens to impose COVID-19 lockdowns, mask and vaccine mandates has been revoked.

 

Other than the SA Public Health Act 2011 and any Direction that may from time to time be issued by The Governor of SA, there is no absolute requirement for obligatory vaccinations for COVID-19 as it relates to the workplace and employment.

 

Indeed, each matter in South Australia will now raise the question of “safety” in the workplace balanced with the rights of the worker to determine one’s own vaccination status. From an employment law perspective, employers can no longer terminate workers simply due to a refusal to vaccinate. That would not constitute a “valid reason” under the Fair Work Act 1994. There must be proof that Work Health and Safety Law requires it, or some other statutory provision has provided for it, but saying that the Government has mandated vaccinations to terminate employment with no other valid reason, will no longer be sufficient.

 

There are matters that we are dealing with where injured workers are fit for suitable duties but have been denied suitable employment based on their non-vaccination status. Since the revocation of the Emergency Declaration, employers can no longer maintain this position even if arguably it was made and confirmed previously.

 

As such, in these cases we will write to the insurer and/or worker and put them on notice about the worker being ready, willing, and able to undertake suitable duties regardless of their vaccination status. Similarly, injured workers cannot be criticised now for breaches of mutuality or suffer prejudice because of their non-vaccination status.

 

Andrew Wright, Partner at Boylan Lawyers, expert in industrial relations for workers encourages workers to be aware of their rights. 

Boylan Lawyers puts the rights of South Australian workers first. Contact our team of experts on (08) 8632 2777.

 

Mandated Vaccinations – are they legal?

Mandated Vaccinations – are they legal?

Mandated Vaccinations – are they legal?

By Andrew Wright

We have endured hearing and reading about the word ‘mandate’ over the past 18 months, but what the heck does it mean?

The word ‘mandate’ has been used when referring to workers in certain industries needing to be vaccinated in order to continue with their duties at work. Classic examples of a mandated workforce are healthcare and education.

‘On just terms’

Confusingly, a mandate in an Act, or an individual policy created by an employer, does not always mean that it is compulsory to comply with that Order or Direction.

Cast your mind back to the classic Australian movie, The Castle. In the end, the Kerrigans weren’t required to hand over their suburban home to Airlink, the company expanding the airport next to their home. This is because the High Court found that their home was not being acquired ‘on just terms’ by Airlink.

Similarly with mandates, they must also be ‘on just terms’.

So, what does that mean?

Well, the directive must be within the bounds of Australian and international law.

If the employee is discriminated against by the employer on the grounds that they are unable to be vaccinated due to a medical condition, then that may well violate Australian and international law.

There are also arguments surrounding religious reasons for not wanting to be vaccinated. However, so far, the courts have been unwilling to give much weight to that argument.

Employers are also in a tough position.

Employers have an obligation to ensure their workforce is safe, alongside their customers and clients, as per the Work Health and Safety Act 2012.

Indeed, employer groups have called on the government to mandate the vaccination requirements at work more broadly under legislation. This would alleviate the need for business owners to attempt creating policies, which cause a minefield.

Recently, to make matters more complex, it was found by the Fair Work Commission that there must be adequate consultation with respect to policies and vaccination. Employers must consult with employees and, if necessary, employment groups, before implementing a policy that directs its workforce to vaccinate.

In conclusion, mandates are legal to the extent that they must be ‘on just terms’. This means the mandate cannot violate other Australian or international laws, such as discrimination. Courts are now making decisions that guide what is and isn’t acceptable with respect to vaccination mandates (E.g., workplaces requiring consultation with employees).

If you require advice on this topic, please contact Boylan Lawyers on (08) 8632 2777.  

Andrew Wright is a Partner at Boylan Lawyers, expert in industrial relations for workers, and the pre-selected Labor candidate for the Seat of Stuart.

Workers’ rights to keep in mind during lockdown

Workers’ rights to keep in mind during lockdown

Much has been said by employer groups surrounding entitlements for employers during lockdowns within South Australia, but what about employees and their entitlements?

Workers may feel pressured to follow instructions from their employer under these stressful circumstances. However, it is important to keep in mind your rights as a worker and more importantly, understand your entitlements. Below are six of your rights as a worker which may potentially be available to you.

  1. Annual Leave – You cannot be forced to use your annual leave during an unpaid stand-down.
  2. Sick/Carer’s Leave – If you are sick or caring for someone whilst on unpaid stand-down then you can use your sick/carer’s leave and be paid for that leave. This is otherwise known as personal/carer’s leave.
  3. Re-crediting your Annual Leave – If you are on annual leave and you are either sick or caring for someone then your annual leave should be re-credited, and that leave should instead be called personal/carer’s leave.
  4. Injured worker compensation – If you are an injured worker and have been stood-down without pay then you should be entitled to receive compensation from your employer’s insurer.
  5. Reduced hours or duties – If you have been advised your hours or duties are being reduced or diminished permanently then this may give rise to a redundancy payment.
  6. Casual worker – If you are a casual worker then now is the time to see whether you can request a conversion to permanent work. The Federal Government changed this criteria recently but as a general rule, if you have been employed on a casual basis for 12 months with your current employer you have a right to request, and potentially be made permanent.

Outside of the above rights, there are several other forms of compensation or entitlements you may be able to claim, including:

  1. Long Service Leave – If you are struggling to make ends meet, check whether you have Long Service Leave Entitlements, or any other statutory entitlements available to you.
  2. Leave – You can enquire with your employer what leave is available to you in your circumstance.
  3. Timely Pay Slips – All workers have to be provided with timely pay slips advising not only of the wage that is being paid to you, but also has to show an accrual of your leave entitlements.
  4. Injury entitlements – If you have been injured at work in the past then make sure you are not missing out on any entitlements through the insurer.
  5. Unfair Dismissal – You have 21 days to make an application for unfair or unlawful dismissal so if you think your contract has been terminated or adversely affected then get in contact with your union or Boylan Lawyers.
  6. Liquidation or Bankruptcy – If your employer goes into liquidation/bankruptcy then the Fair Entitlements Guarantee (FEG) may provide you the accrued entitlements, including wages and leave entitlements that your employer cannot afford to pay.

If you are struggling with your current income during lockdown, you may be eligible for other financial Covid19 support, including:

  1. Pandemic Leave Disaster Payment – A $1500.00 payment from the Commonwealth Government to a worker for each 14-day period a worker is required to quarantine and cannot work due to quarantine (conditions apply).
  2. Covid-19 Disaster Payment – On 28 July 2021 workers can receive $375.00 per week if they are unable to work between 8 and 20 hours a week and $600.00 a week if unable to work for over 20 hours a week.
  3. SA Covid-19 Cluster Isolation Payment – Unlike the disaster payment this payment is a one-off payment of $300.00. You are eligible if you must self-isolate due to being in a cluster area and is to compensate you whilst awaiting your result.

Check your eligibility on the SA Government website here: www.covid-19.sa.gov.au/school-and-community/financial-support-for-individuals

 

Andrew Wright is a Partner at Boylan Lawyers, expert in industrial relations for workers, and the pre-selected Labor candidate for the Seat of Stuart.

 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker during the Covid19 lockdown, contact our team of experts on (08) 8632 2777. It costs nothing to ask a question.

 

 

Andrew Wright
Employment Lawyer & Partner
Boylan Lawyers

Hurting injured workers with impunity

Hurting injured workers with impunity

Injured Worker | Boylan Lawyers

Every South Australian worker is covered by workers compensation insurance which covers them if they are injured at work.

Our workers compensation law allows up to 2 years of wages as well as 3 years of medical expenses, rehabilitation, and a one-off payment of lump sum compensation if the Whole Person Impairment (“WPI”) from the injury is 5% or more.

South Australian workers with 30% WPI are called “Seriously Injured”. They are entitled to wages until retirement age and ongoing medical expenses. My Seriously Injured clients generally cannot work at all, need lots of help in their daily lives, and are in no position to support themselves or their families. Through no fault of their own they are significantly compromised.

Treasurer Rob Lucas is trying to change the way that WPI is assessed by changing the Impairment Assessment Guidelines. By doing it this way he avoids any scrutiny by the Parliament.

In most all cases the proposed changes will cut how much WPI injured workers are found to have. Rob Lucas is making it much harder for injured workers to get a lump sum payment or be considered Seriously Injured.

The changes will make life harder for our most vulnerable workers. It will affect their ability to recover from injuries, and return to work and the community. 

The Treasurer Rob Lucas should not be able to make such change unilaterally. Such changes must be kept in the ambit of Parliament to allow proper discussion and debate: not pushed through without proper consultation. 

There are over 750,000 employed persons in South Australia and their fate should not be left up to one person’s absolute discretion. We support a measure to ensure all changes to the Impairment Assessment Guidelines be assented to by the Parliament.