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 minimum wage has increased, but my pay hasn’t. What should I do now?

The minimum wage has increased, but my pay hasn’t. What should I do now?

 

By Alison Martens

On 1 July 2022 the National Minimum Wage increased by 5.2% and the award minimum wages increased by 4.6% (fairwork.gov.au). This means that about $40 extra per week would be landing in the pockets of those employed under these agreements. 

For employees, this is good news, however some might be left wondering why their pay cheque hasn’t increased yet. Below I break down what steps you should take, or why your pay might not increase.

Check your eligibility

Not everyone in Australia will have their wage increase because of this decision by the Fair Work Commission. The decision affects the pay of approximately 2.7 million Australians who are on the national minimum or those who work under an award. If you’re not sure which award applies to you, you can use this tool here.

Calculating your new pay rate

If you fall within an award or receive the national minimum, you can calculate your new pay rate (including allowances) with this tool here.

Once you have calculated your updated wage, we recommend speaking with your employer to discuss having the updated rate reflected in your employment agreement.

If you work within the aviation, tourism, or hospitality sectors, it is important to note that the wage increase has been delayed until 1 October because of their slower economic recovery post Covid.

Employer refusing to increase wage

If your employer refuses or is unnecessarily delaying the increase of your wage, and you fall outside of one of the delayed sectors, you should seek legal advice.

You can obtain generic initial advice from the Fair Work Commission, however if your situation is more complex, it is best to obtain personalized advice from an employment lawyer. It can be hard to navigate these situations with employers, therefore obtaining the correct advice up front is important.

Our employment law team offers free 30-minute consultations, which will help you understand what your next steps should be suited to your personal situation. To book in, call Boylan Lawyers on 08 8632 2777.

Alison Martens, Senior Associate at Boylan Lawyers, has built an impressive career within the employment law area over her seven years practicing.

How are weekly workers compensation benefits calculated?

How are weekly workers compensation benefits calculated?

By Alison Martens, Senior Associate

 

If you have suffered a work injury and you are entitled to weekly payments, you might be wondering how these payments are calculated…

Under the Return to Work Act 2014 (‘the Act’), if you suffer a compensable work injury and are unable to work due to your injury, you may have an entitlement to weekly payments of compensation. Often a complex and overwhelming area of law, these weekly payments are usually calculated with reference to your ‘average weekly earnings’. But what does this mean exactly?

Under the Act, ‘average weekly earnings’ is defined as the average weekly amount that you earned during the period of twelve months preceding your injury date. Importantly, for the purposes of the calculation, earnings are not confined to wages. So, what else could be included? 

Earnings can include any amount paid while you were on annual, sick, or other leave. They might also include a voluntary salary sacrifice for superannuation purposes (paid by you) or a non-cash benefit provided to you by an employer.

Sometimes this calculation method can produce unfair outcomes. The Act recognises that at times, basing your entitlement on the average weekly amount that you earned during the period of twelve months preceding your injury, will not produce a fair outcome.  Accordingly, the Act contains provisions as an alternate means to calculate your average weekly earnings. The purpose of these provisions is to ensure your average weekly earnings will not be based on earnings that are less than your lawful entitlement. 

What do these provisions cover? The provisions cover circumstances where you have suffered a gradual onset work injury and it appears that your level of earnings have been affected by your injury. You might have also had unplanned time off in the 12 months prior to your injury. In circumstances where you were predominantly in full-time employment prior to your injury or you regularly worked overtime, this will be factored in too. Exceptions for apprentices and injured workers under the age of 21 years also exist.

If at the time of suffering your injury, you were covered by an award or industrial agreement, your average weekly earnings will not be less than the weekly wage to which you were entitled to be paid. If there is no industrial instrument, then you are entitled to be paid no less than the Federal Minimum Wage.

If you have suffered a work injury and need advice with regards to what you are entitled to, Boylan Lawyers can assist you with navigating what is often a complicated and overwhelming area of the law. Contact us today on 08 8632 2777 or email hello@boylanlawyers.com.au. 

COVID19 and Workers Compensation Claims

COVID19 and Workers Compensation Claims

Injured Worker | Boylan Lawyers
From 23 November 2021, South Australia’s borders will be open to fully vaccinated people from all Australian states and territories, with some exceptions (SA Gov). The expected rise in COVID-19 transmission means everyone should be aware of their rights and responsibilities when it comes to safety at work and workers compensation.
 

Workplace Responsibilities

Any person conducting a business has a responsibility to ensure, so far as is reasonably practicable, the health and safety of workers in their workplace. This likely includes minimising, if not wholly eliminating, the risk of exposure to COVID-19. Consequently, workplaces are expected to continue with physical distancing, mask wearing, good hygiene, regular cleaning and maintenance, and encouraging vaccination. 

Employers should keep up to date with cleaning requirements for the various workplaces (SA Health).

Workers have responsibilities to take reasonable care for their own safety too. Workers should ensure their acts or omissions don’t adversely affect the health and safety of others. Workers must also comply with reasonable instructions and co-operate any reasonable policy or procedure relating to health or safety at the workplace. 

Employers are encouraged to read the SafeWork Australia guides and understand how to best provide a safe working environment. Read the SafeWork guides here to check if your workplace is complying with the recommendations.  

What Happens if my Workplace is Deemed an Exposure Site? 

If your workplace is exposed to COVID-19, the following guidelines for assessing and managing risk have been implemented by SA Health: 

  • General Businesses and Venues: hospitality, community sport, places of worship, retail services, entertainment facilities, higher level education, beauty and other services, information and educational facilities, major recreation facilities.  
  • Critical services and infrastructure: defence, essential infrastructure work (i.e. energy services, water services, food manufacturing), emergency services, veterinary services, and agriculture.   
  • Primary and community health care settings: medical settings, paramedics, pharmacies, pathology services, non-residential disability care. 

What Financial Support Exists if I am Directed to Quarantine or Isolate?  

The South Australian Government has outlined a pandemic leave support payment and cluster isolation payment for individuals. More information can be found here 

Alternatively, sick/personal leave, annual leave, income protection (where a policy allows), or other applicable insurance may be available to you. If you are unsure of your entitlements, you should speak to a lawyer. 

Can I Claim Workers Compensation if I Catch COVID-19 at work? 

If you catch COVID-19 and believe you caught it from work, then you can make a workers compensation claim, this is even if your employer took all reasonable steps to minimise the risk. Whether you succeed will depend on your unique circumstances. You will have to prove on balance that the infection came from the workplace, rather than another source such as exposure in the community outside of work. It is highly recommended that you speak to a lawyer if you think you caught COVID-19 at work. 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker, contact our team of employment and workers compensation experts on (08) 8632 2777.  

Elias Angeletti is Senior Associate at Boylan Lawyers, specialising in employment and workers compensation law. Elias was admitted in 2014 and has since been involved in workers compensation legal proceedings before the South Australian Employment Tribunal, Administrative Appeals Tribunal, the Supreme Court of South Australia, and the High Court of Australia.  

Workers’ rights to keep in mind during lockdown

Workers’ rights to keep in mind during lockdown

From 23 November 2021, South Australia’s borders will be open to fully vaccinated people from all Australian states and territories, with some exceptions (SA Gov). The expected rise in COVID-19 transmission means everyone should be aware of their rights and responsibilities when it comes to safety at work and workers compensation.
 

Workplace Responsibilities

Any person conducting a business has a responsibility to ensure, so far as is reasonably practicable, the health and safety of workers in their workplace. This likely includes minimising, if not wholly eliminating, the risk of exposure to COVID-19. Consequently, workplaces are expected to continue with physical distancing, mask wearing, good hygiene, regular cleaning and maintenance, and encouraging vaccination. 

Employers should keep up to date with cleaning requirements for the various workplaces (SA Health).

Workers have responsibilities to take reasonable care for their own safety too. Workers should ensure their acts or omissions don’t adversely affect the health and safety of others. Workers must also comply with reasonable instructions and co-operate any reasonable policy or procedure relating to health or safety at the workplace. 

Employers are encouraged to read the SafeWork Australia guides and understand how to best provide a safe working environment. Read the SafeWork guides here to check if your workplace is complying with the recommendations.  

What Happens if my Workplace is Deemed an Exposure Site? 

If your workplace is exposed to COVID-19, the following guidelines for assessing and managing risk have been implemented by SA Health: 

  • General Businesses and Venues: hospitality, community sport, places of worship, retail services, entertainment facilities, higher level education, beauty and other services, information and educational facilities, major recreation facilities.  
  • Critical services and infrastructure: defence, essential infrastructure work (i.e. energy services, water services, food manufacturing), emergency services, veterinary services, and agriculture.   
  • Primary and community health care settings: medical settings, paramedics, pharmacies, pathology services, non-residential disability care. 

What Financial Support Exists if I am Directed to Quarantine or Isolate?  

The South Australian Government has outlined a pandemic leave support payment and cluster isolation payment for individuals. More information can be found here 

Alternatively, sick/personal leave, annual leave, income protection (where a policy allows), or other applicable insurance may be available to you. If you are unsure of your entitlements, you should speak to a lawyer. 

Can I Claim Workers Compensation if I Catch COVID-19 at work? 

If you catch COVID-19 and believe you caught it from work, then you can make a workers compensation claim, this is even if your employer took all reasonable steps to minimise the risk. Whether you succeed will depend on your unique circumstances. You will have to prove on balance that the infection came from the workplace, rather than another source such as exposure in the community outside of work. It is highly recommended that you speak to a lawyer if you think you caught COVID-19 at work. 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker, contact our team of employment and workers compensation experts on (08) 8632 2777.  

Elias Angeletti is Senior Associate at Boylan Lawyers, specialising in employment and workers compensation law. Elias was admitted in 2014 and has since been involved in workers compensation legal proceedings before the South Australian Employment Tribunal, Administrative Appeals Tribunal, the Supreme Court of South Australia, and the High Court of Australia.  

Read ‘Presuming COVID-19 arises from work‘ which outlines why COVID-19 should be a deemed injury under the Return To Work Act 2014 (RTW Act) South Australia.

Under the RTW Act South Australia has a list of jobs and medical conditions that are presumed to have occurred (deemed injuries) because the injury or disease occurred when they were undertaking a task that is likely to have caused that injury or disease. Unless there is proof to the contrary from the insurer/employer (the reverse onus) then the claim for that injury is accepted.

Covid-19 must be included in that list, at least for workers such as nurses, doctors and cleaners who are working in ‘high-risk’ areas, or the front line. Section 9 is the evidentiary provision under the RTW Act.

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.