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In Whose Interest Do You Claim: The Public's Interest or Your Own?
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Workers' Compensation

Generally there is plenty of time to bring a worker’s compensation claim at the end, when it's all over or you’ve successfully got yourself back to work on your own terms. So, you need to be more strategic and stay in the driver’s seat, whether you want to return to work or not.

Think about when you make a motor vehicle accident claim. Once you make the claim, you’ve legally given your insurer the right to decide what’s to be done, even to the point of being able to sell your car back to you if you don’t want it written off. Workers' compensation insurance is no different. Once you make your claim, your employer is legally entitled to involve itself in your affairs and dictate how, when what and why. Your employer gets to be in the driver’s seat and largely in tandem with its agent, the insurer.

It tends to be an all-too-familiar story. Your own doctor’s views are no longer seen as important. You have to see their psychiatrist, not yours. S/he invariably operates on your employer’s version of your history, not yours.

Some awful things happen. A person once told WBA how, as he said goodbye, the psychiatrist grasped his hand saying sympathetically. "I bet you feel like killing the bastards sometimes." The whistleblower grimaced, barely raising a smile. You guessed it: The report came back with something like 'he shook his fist at me, shouting he’d kill the bastards'. People do bad things for very little reason sometimes and money makes it all too easy.

Now, if you can use your own leave entitlements, then you, with your doctor, can stay in the driver’s seat. Generally, your employer can’t direct you to see anyone without your agreement and it has to take notice of your doctor’s instructions. You would need to make sure your doctor is kept fully informed regularly. All your medical certificates should provide details of your symptoms and sheet home the blame to your employer for trying to force you out. If you don’t have a doctor, get one. Get a referral to a psychiatrist or psychologist.Your doctors should keep a detailed record of what’s going on. Then, after you get back to work or decide to leave, you can put in what is known as a 'closed period' workers' compensation claim. Plus you'll have the only record and the best record.

It’s known as a closed period claim because it is for a set period and made after the fact.You would be claiming all the usual things: Monetary reimbursement for the leave entitlements you’ve used, all related expenses, and compensation, if applicable. That is, you stay in control of your health and welfare.

You can do the same if you opt for medical retirement, but use your leave entitlements upfront and then claim them back at the point you leave work, because that way you stay in control of your affairs for as long as you can.

Postscript:
  1. Check the limitations claims applying under workers' compensation legislation in your jurisdiction or state at http://www.austlii.edu.au.
  2. About WorkCover: Every employer in Queensland, unless a licensed self insurer, must have a workers' compensation insurance policy with WorkCover QLD.  In other states the WorkCover authority is just one of the insurers and is also responsible for workplace health and safety regulation. Some employers are self-insurers. In Queensland, the Workplace Health and Safety division of the Department of Employment and Industrial Relations oversees all workplace health and safety.
  3. Comcare: This is the federal equivalent of WorkCover and provides all scheme employers with an integrated safety, rehabilitation and compensation system, no matter what Australian state or territory an employer operates in or where its employees are located. It is also an industry regulator, as it uses regulatory sanctions for any demonstrable failure of the employer’s duty-of-care. Refer to http://www.comcare.gov.au/.

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Copyright Whistleblowers Australia 2007-2010. (Last update: 18 November 2010.)