The current workcover system for impairment rating is not fair at all
If you have read the previous post about “claiming compensation for pain and suffering” you may well have realised that our current workcover legal system is not set up as fairly as you first thought!
It is only when you or someone close to you is a victim of a workplace accident that you actually discover the VIC (and most other state) Government is denying you of a lumpsum and of the common law right of access to justice for any pain and suffering endured.
The current VIC Government’s workers compensation insurance law basically means that:
- Before you, an injured worker, can sue an employer, you -the victim- would have to meet a 10 percent ‘whole person impairment’ (WPI) threshold, calculated in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition (AMA Guides) or (after 2003) a 5% WPI for upper limb, lower leg or spine injury;
- For psychological injuries, a whopping 30 percent threshold applies, and those injuries need to be primary psychiatric injuries (secondary psychiatric injuries don’t count)
- Cases are usually assessed by the medical panel,because most often the so called independent medical impairment assessment organised and paid for by the workcover insurance is extremely unfair and ,indeed more often than not, needs to be appealed at the medical panel.
Even for the few cases that would make the necessary grade, the workcover injury victims would find the lumpsum payout amounts extremely small, and the caps on pain and suffering often unfair.
At first glance one would think that we have a what appears to be a reasonable, standard “guide” in place (The AMA guide 4th Edition) to assess the level of permanent impairment for each injured person…
… you will soon realise (if you dig a little further) that the use of the AMA guide (4th Edition) is based on pseudo science and designed to do only one thing: to stop people — especially the most vulnerable — from being fairly compensated.
Did you know that the AMA Guides 4th Edition were published in 1993,they are just about 20 years old!
Did you know that the AMA Guides state up front that:
- They do not — NOT — purport to be “scientifically valid and reliable”
- Impairment ratings in the guides are “merely ‘estimates’ of impairment” based on “consensus” not “scientific evidence”
- Do not apply to “every type of impairment”
- That “certain conditions (such as psychiatric reaction to pain) are not explicitly ratable under the Guides”
- Should “not be used for direct financial awards nor as the sole measure of disability; and
- Are based “not on science but on ‘legal fiction’, ‘consensus,’ and other unsupported assertions”
Yet, the VIC Government uses these American Guides, what US Courts have determined as, “arbitrary” percentages to a victim’s injuries.
Does that sound like a system for fair compensation to you?
Here are a few real examples of injured workers and denied “compensation” entitlements
Injuries denied justice
Under the current workers compensation system the kinds of injuries that would be denied compensation include:
- vertebral fractures resulting in up to 25% compression with ongoing pain : 5-8% total body impairment rating!
- spinal fusion requiring multiple surgeries with ongoing pain : up to 14%
- surgically treated disc lesion with ongoing pain: 10%
- pelvic fractures with displacement deformity: 2-10%
- disorders restricting ability to walk up mild gradients and stairs, sit down in deep-chairs, rise to a standing position or walk long distances 1-9%
- brief repetitive or persistent alteration of state of consciousness or awareness 0%-14%
Think about it: if you are, say, an office worker and suffered a bad back injury (because you slipped and fell at work, and it was your employers fault because the cleaner left the floor wet and forgot to leave a “wet floor sign”), you ended up with a spinal (back) fusion and have ongoing severe pain for which you take a lot of pain killers, you were previously a very good horse rider and now you can’t ride anymore and had to sell your horse. You were told that you will get arthritis in your back and may need further surgery over the years/lifetime. You need to ‘sit” on a special chair at work and the pain is killing you, every 20 minutes you need a break… and are now working barely 20 hours a week.You have become very depressed and need anti-depressants and counselling. Still, you are not entitled to sue for compensation for pain and suffering or for economic loss. You are likely to get about 14-16% impairment -if you are lucky- and that will give you a lumpum of about $15 to 27.000, that’s it for the rest of your life.
Does that sound fair to you?