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  1. #1
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    Default Work Injury

    I'm basically posting this to see if anyone has any idea on what the law is with workplace injury. It's for for my mum, I don't get along with her all that well, but I hate seeing wrong done to her.

    Last year in April she was told to use a piece of machinery that she hadn't used before. When she turned it on she found it hard to control and the people there laughed at her. She forced it to go in the direction she needed it to go, which fractured her wrist. Work did nothing about this, she had to get the medical care herself.

    The physio has been doing what they can to strengthen it, but she's in her 60's and it's taking a long time. It has also caused a secondary injury to her shoulder. She was placed on light duties, as the doctor and physio recommended, but has now been told not to come in at all because it's not fair on everyone else. Her supervisor has been constantly calling her asking when she'll be coming back full time. She's done all the things Work Cover asked of her and it's all above board.

    Last week she was called to a meeting at work and told if she doesn't return full time on full duties (it's a very physical job) by April, her job would no longer be there for her. Apparently they can legally terminate her employment.... this doesn't sound right to me. It was an injury caused by lack of training at the workplace. She has also suffered mentally because she's cooped up in the house all day. She WANTS to go back to work, but the last time she tried it caused further strain and put her back weeks..

    She's so upset. I'm trying to talk her into going to see a lawyer, but she's just so low she's damn near suicidal. There's only so much I can do for her as I don't live close by.

    Does it sound right to you? What would you do in this situation?

  2. #2
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    It sounds like she has already lodged a successful workcover claim? What are they saying about it? Does she have a medial cert saying she can only do certain duties? I am no expert but if workcover accepted the claim and are paying for it, it would be unusual for them not to be involved.

    On the other hand, if your mum is never going to be able to work again in her normal job, it's unlikely that her employer would be required to give her modified duties forever. I know that sounds unfair but it's all about being able to perform the inherent requirements of the role, even if the injury was caused at work. In an extreme example, if someone could no longer lift anything because they were injured at work and they were a brickie, they would likely lose their job. This is where workcover comes in in terms of insurance, etc.

    Can you provide more details including what workcover says, what her doctor says, if she has had an independent medical examination, etc.

    Assume she has a workcover contact as well who could provide info and support.

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    No that is not right at all. I've dealt with Work Cover in my work place and claims that were made within the business. The employee was to be put on light duties, had to have a certain amount of breaks and even though was casual had to be given a certain amount of hours.
    One employee in particular was milking it for all it was worth and after looking into it we couldn't terminate him.
    What your Mum has been told is incorrect and they could be in huge trouble for unfair dismissal. I would seriously look into taking it further. It is also illegal to perform duties like that without the proper training, it's an OHS risk.

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    Work Cover is involved, but I'm unsure whether they were involved with this meeting. Everything at the doctor and physio has been relayed to WC and she's been sent to their doctor just to make sure it was all above board, and it was. The physio cleared her for light duties, but the company have told her no.

    I understand that if she were never able to return to work at her full capacity they shouldn't have to keep her on, but she has every intention of trying to get back to work this year, and goes to the physio twice a week to try and strengthen her arm.

    Surely, because it was work related, if they did terminate her employment due to her incapacity to work, they'd have to give her a decent payout. She is 62, it's not like she's top of the list for potential new employees.

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    She should see a lawyer asap about making a common law claim (if the employer was neg) as there will be more money in that, particularly for a perm injury.

    Re termination, from memory you can, but you have to meet criteria. Phone fair work Australia as a start.

    If she does get sacked she needs to act asap as there are v short time frames for dismissal claims.

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    Without knowing all the facts it's impossible for me to say more... It really depends on her prognosis and the recommendations of the doctor/physio, work cover and the ability of the employer to provide appropriate modified duties for a period of time. Assume she is not a union member? She needs to call Fair Work to get more info, and tell her to ask about a general protections/adverse action claim.

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    She is a union member. I'm trying to encourage her to call them on Monday.

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    Yep I was about to say the same if shes in a union then get onto them first thing monday as thats what she pays her fees to them for. I am curious as to why she did not claim workers comp when getting medical attention too as if the accident happened at work while perforiming her normal duties then she is eligible to use it. Keep all reciepts for medical costs so far as she may be able to get some of the money back.

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    They can terminate you after 26 weeks placing you on a statutory rate if you are not cleared for pre injury duties. Being on a statutory rate means the insurer will continue to pay you even though the company has nothing to do with you but it will be a lower rate of pay. Definately worth while seeking legal advice. You can also call work cover who have a claims assistance service who can tell you what your legal rights are. If there are still ongoing oh&s concerns you can call workcover and make a complaint. They will send out an inspector to visit the workplace.

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    My source is a work cover inspector.


 

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