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.   

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. 

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.

 

How to navigate Christmas arrangements as separated parents

How to navigate Christmas arrangements as separated parents

By Sebastian Hill, Managing Partner at Boylan Lawyers

 

Navigating the Christmas period as a separated family can be stressful. Separated parents need to plan how they’ll share time with their children on the dates of importance (i.e., Christmas, New Year’s Eve, etc.) and what travel arrangements are appropriate during COVID19.

We provide general advice on the commonly asked questions received from separated parents who are trying to navigate the festive season.

What Christmas arrangements are available for separated families?

Plenty of options are available for separated families to share time with their children throughout the holiday period. Examples of Christmas arrangements might include:

  • Children with one parent on Christmas eve and Christmas morning, and with the other for Christmas afternoon and boxing day.
  • Children with one parent for all of Christmas, but with the other parent for a couple of hours during the day.
  • Children spend all the Christmas holidays with one parent, which then changes the next year.
  • Continue with your usual arrangement if Christmas is not a significant holiday for your family.

Most importantly, both sides need to be happy with the arrangement that is chosen and commit to it. Be polite and civil during negotiations. Nothing makes a matter worse than conflict and threats.

 

What happens if my ex is being difficult and/or threatening to not go ahead with our plan?

Whether you are newly separated or have been separated for a while, it is important to understand your rights.

If you do not have a court order in place, care arrangements for children are not enforceable. The option to have a judge decide how you and your children spend Christmas is also not an option in December due to the court’s cut-off date.

At the forefront of your actions should be what is in the best interests for the child. They have a right to see both parents and share in the joys of the holidays. Either parent is entitled to make decisions about their children. However, parents need to think about the potential consequences of their actions such as litigation, difficulties with future negotiations or arrangements, and disruption to their children’s life.

Parents should talk to each other and see what arrangements they can make. Parents should also meet with their lawyer to work out an arrangement that is fairer and more concrete in the new year.

 

My ex wants to travel interstate with our children, and I am worried about COVID19, what can I do?

Generally, it is difficult to get an urgent court listing, and much will come down to the respective COVID laws in place at the time. Questions that would be considered include ‘Are the borders closed for re-entry?’, ‘What state are they going to?’, ‘What are the quarantine obligations on return?’. These are no simple questions, and each case will turn on its own circumstances.

If there is a court order, there might be a “reasonable excuse” for non-compliance with any existing order with respect to allowing travel or not. A primary carer probably faces less adverse legal consequences than a contact parent for travelling or not allowing the other to travel.

An urgent legal letter from your lawyer putting another party on notice may prevent or ensure an outcome. This might also become useful in the future.

With regards to how much the police can help, they prefer to not get involved with family matters. Police will do welfare checks (to a point) and keep the peace. They will not take your children away because the other parent has told you they will. If your children are in danger, the police will step in.

 

Family and domestic violence services are available

If you are experiencing violence or abuse, family and domestic violence services are still open over Christmas. Don’t think that it is too hard to leave or do something because everyone is closed. If you are not sure what or where to ask – talk to the police. If the police cannot help you themselves, they can direct you to those services who can. Help will be available if you need it.

The Boylan Lawyer’s family law team has a combined 86 years’ experience working in family law, wills and estates, and probate. We are committed to protecting the rights of individuals and families. Clients are now supported from offices in Adelaide CBD, Port Pirie, Strathalbyn, Victor Harbor, Port Augusta, and Whyalla.

 

Book a free family law consultation today by clicking here.

 

Sebastian Hill, Managing Partner

Sebastian Hill is the managing partner at Boylan Lawyers. Sebastian oversees all practice areas and has a specialist interest in family law, estate disputes and intergeneration farm transfer. Sebastian provides clients with clear, considered, and practical advice.

Sebastian is a passionate contributor to the legal profession in South Australia having served as a member on several Law Society of South Australia Councils and Committees and as a board member of Westside Community Lawyers.

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.