From the silent voice of death come the soundest lessons in life

August 28th 2007

On Monday the 6th August Edith Logan, Cynthia Fielding and myself met with Sue Ellis (Manager, Stakeholder Relations), Danielle Martin (General Manager) and Emma Hosking (Manager Customer Improvement) in order to discuss not only the Phil Moir articles but also, the many and varied issues that have surfaced for families of fatal workplace accidents.

This was always going to be a complex meeting simply because it was a first.  Being the 'first' meant that we were starting from the beginning of a long list of issues.  So for a first meeting there was a lot to cover in just 2 hours.  However, what's important here is that the lines of communications are open and hopefully this won't be the last time VOID visits with the organisation.

Now - let us begin with the various topics discussed.

ARTICLES ON THIS WEBSITE 

To be perfectly honest, what actually prompted this meeting in the first place was an email from WorkCover in relation to Phil Moir's articles.  Rather than go into detail on this page, you can read the article and dialogue between Sue Ellis and myself by clicking here.

We moved straight into the organisation's concerns in one particular article submitted by Phil Moir.  WorkCover suggested that some of the figures quoted by Phil were misleading / inaccurate.  One gets the impression that Phil Moir keeps the organisation quite busy.  

The best solution to this problem is, as I had suggested to Sue Ellis when she first contacted VOID, for WorkCover to outline exactly what is misleading.  I would then seek to have Phil Moir substantiate his information in precise terms.  In other words, let's clear up what is and is not factual.  It has always been our position that WorkCover is free (and welcome) to submit response to anything on this website if the organisation feels it is being portrayed unfairly.  

There were also comments raised in relation to the Shame Files.  These are specific cases that have been relayed to VOID by people who have first hand experience in dealing with the 'system'.  No names are mentioned of course, but they are real cases - real people.  Again, the invitation is there for WorkCover to clarify its position on such cases where they feel clarification is warranted.  

The response from WorkCover was that legislation prohibits them from commenting about individual cases.  What we hope 'can' happen however, is that WorkCover offer some general and perhaps broader reasoning to explain how and why hardships like this can arise.  I can't imagine that the legislation would prohibit broad explanations like that - so here's hoping we see some comment come through in the near future.

Just on the topic of this website.  

The whole point of it is to take the complexities of legal jargon and political wish-wash out of the dialogue so that every day people (like you and me) can begin to understand how all this works.  It's fair to say (at least to date) that there's not been much positive written about WorkCover on this site.  Believe it or not, we don't see any value in maintaining that status quo.  The challenge here is to identify the problems and fix them.  AND...trust me on this, when you've been dealt the kind of traumatic blows the folk here at VOID have, fixing stuff like this is easy compared with having someone you love killed suddenly at work.  We may not be able to bring that loved one back but we sure as hell can make sure those left behind are treated with dignity and compassion.  It's a no-brainer - so onward we go ... next topic.

THE IMPACT WORKCOVER HAS ON GRIEVING FAMILIES WHEN DEALING WITH DEATH CLAIMS 

This is where Edith and Cynthia came in as both these ladies have first hand experiences in dealing with the claims process - and both had some disturbing stories to tell.  It was vital that VOID was able to get across just how unnecessarily brutally  some of the claims have been managed. 

I will say here, I saw only concern and bewilderment in the faces of the organisation's delegates.  It seemed to me there was a sense of frustration in terms of just how much could be done about this given the need to balance the demands of the legislation's with the reality of a 'business' that must protect itself against fraudulent claims.

Our first argument is that compassion costs nothing and that there is a right way and a wrong way to go about this 'business' of determining entitlement.  

Our second argument is that a dead workers family are hardly going to fall into that fraudulent group of misfits.  For crying out loud, why they need to be treated with such suspicion and disrespect is beyond me.  

These families simply deserve better.  It is not acceptable nor morally okay for the insurance entity (EML) and its case managers to jump on a weakness in order to "TEST" entitlement - and that being said, let's see what comes from all of this because we need that to be addressed immediately.

It should also be said that there has now been a formal complaint lodged against EML's employees in relation to one particular member's treatment - and only because this particular woman is one that found enough courage to stand up and say enough is enough.  We will put this on public record right here and now - the proof in the pudding as to how worthwhile this meeting was will only come when we see this complaint properly addressed.  

In the meantime, while we wait for that to happen, from all this we have to believe some good will come.   We'll keep the lines of communication open and maintain contact - that has to be a start.  

THE 'NOT SO TALKED ABOUT' DEATH IN THE WORKPLACE

We discussed at some length the hidden nature of the fatal injury on the WorkCover website.  In fact, in just about every aspect of WorkCover's mission, the sole focus seems to tip toe around the issue of death.

For those of us who have found ourselves in the heartbreaking position of having to figure out what happens when a loved one dies at work, invariably the WorkCover website is one of the more obvious websites to visit.  In relation to fatalities, there's so very little found - if anything.  In fact, almost the entire website is dedicated to injured workers and the process of getting them back to work.  We'd found nothing, no literature, no fact sheet, nothing for people like us who don't get to send Daddy back to work.

WorkCover acknowledged that this was something they are very keen to address as soon as possible.  It was suggested that they were really unsure how best to tackle the issue for fear of upsetting people who came across the information.  We responded that by not having information there for family members, it felt like the whole issue was being swept under the carpet - not talked about - like it somehow does not matter.  We tried to explain that family members who visit the WorkCover website usually do so because they have come to a point where there is a need to understand how this system works.  Invariably they leave it feeling isolated and frustrated.

I suspect that in the not too distant future we may see more information for people looking for fatality information.  

We have also now seen the 'proof' of a new brochure that has been put together recently for family members who have lost a loved one at work.  It's aim is to simplify the definitions of entitlement.

Gosh...what can we say - the brochure is excellent.  It is written in a simple to understand format and steps people through the various questions of entitlement.  There are some areas that need some clarification though - because as it reads now, it raises a few extra questions - but - with those particulars sorted out this will be a God send for future family members.

COUNSELLING - WHO LOOKS AFTER FAMILY?

Another issue raised was the question of counselling after a workplace death.

It seems that unless the employer chooses to provide trauma counselling for family, there is no professional assistance available for the people who are the hardest hit by the death, unless of course they pay for it themselves.  Problem being, at times like this, money becomes an immediate problem and the availability of quality help is a luxury these families can not afford. 

We find it rather ironic (and even insulting) that as a result of the death of our loved one, there will be any number of people who will be offered immediate professional help to deal with the trauma.  The company provides this for co-workers - the investigators and the emergency services who attend the accident have access to trauma counselling if they need it ... but no one thought to ensure there is a means for family members?

We have people within this group who have children struggling to cope with the loss of a parent and a mother who is in the depths of despair just trying to keep the household running.  These people did nothing to create this nightmare and yet they are the very people being told - "Sorry, you're on your own!"  

We are told there are 'free' services available and yes, it's true, there are.  Unfortunately these services are already over burdened and the waiting list can be quite long.   While these 'free' services are an absolute necessity in our community one could argue, if the co-workers and other organisation groups are seen to need specialised counselling - why are these services not automatically provided to family?

It does strike an ironic twist that a 'freebie' service is the best on offer here ...

THAT INDEPENDENT REVIEW

There's been a lot of talk in the media in recent times about the state of WorkCover's financial viability with the blow out of the unfunded liability.  As a result, the Government ordered an Independent Review of the system.  A number of issues we talked about at this meeting in relation to entitlements for death claims are relative to the topics being covered in this Review.  Recently we were sent a copy of WorkCover's proposal (WorkCover Board's Proposed Legislative Changes to South Australia's Workers Rehabilitation and Compensation Scheme) this giving us a little insight as to what the organisation itself sees as a fix to the problems. 

The Independent Review Committee had contacted various business / employer groups as well as injured worker groups for their input.  We were asked whether anyone had contacted VOID for a submission on behalf of the death claims - the answer to that was no.  Nor did we realise that we would be entitled to submit...mainly due to the fact that the group is very new and still learning about such rights in process.  

It was upsetting to say the least, that through sheer inexperience, we may have missed an opportunity to have the voice of the death claims heard - but - after some quick calls it seems due to the fact that no one had offered any input to this particular group of claims, we have been given the green light.

Just on the topic of the WorkCover's proposal...hohum...

What I glean from these recommendations from the WorkCover Board is that the less seriously injured worker should receive less compensation while the more seriously injured worker will receive more compensation.  This appears very much based on the Victorian Workers Compensation Scheme.  I think in general terms, most of us would have no issue with the concept of a minor injury being less compensated monetarily and encouraged back to work as soon as possible...but what I am unclear on at this stage is, well...just what or who defines a lesser injury...and what will the measuring stick be?

Which brings me to another topic - let's talk about the  seriously injured worker.  

If you read the dialogue between Sue Ellis and myself on Phil Moir's page, I asked Sue / WorkCover to look into a hypothetical claim in order to satisfy a haunting suspicion I have carried around with me since my 18 year old son's death at work.

This hypothetical claim was based on his injuries minus the chest trauma that ultimately claimed his life.  The reason why I need this information?  For some 20 hours after his accident, I was actually quite optimistic that Daniel would survive based on initial prognosis.  The reason I asked this question of WorkCover is because I have serious reservations as to what Daniel's life would have been like HAD he survived with missing limbs and various serious organ trauma. 

The Answer:  While there was no 'official' figure quoted (I guess the question was overlooked) I was told that Daniel would likely have received the maximum lump sum payment which was in the vicinity of $240,000 (and let me be very clear when I say that this amount for permanent incapacitation is ludicrous).  However according to this Review, the maximum lump sum will increase to about $360,000 which is a reasonable increase BUT - let's be clear about this, that increase will only really begin to address the hike in real estate prices and mortgage costs.  In real terms it has not achieved much more than that.

Then we came to income maintenance.   This young permanently disfigured worker, I was told, would have been entitled to almost his earnings at the time of the accident as the current legislation stands.  As a young apprentice he earned about $240 a week.  I was assured however that this amount would have increased as his apprenticeship progressed.  One thing is for certain though, the income maintenance would never have taken into account earnings over and above a standard base salary.  

So I guess I have the answer.  Daniel's life would have been a catastrophic mess had he managed to survive.  I still remember begging and pleading with him to fight as he lay there on life support.  Good God ...  how naive was I to think there was a safety net?

I can't even bring myself to imagine his struggle and indeed the struggle of our seriously injured workers forced into a life of dependency along with the physical and emotional trauma.  My son had a healthy mind before his accident.  I believe he had the courage to deal with his physical injuries but I know without question today this system and its senseless idea of fairness would have left him deeply scarred emotionally.

WorkCover does not take into account the potential of the impact of an injury.  For example, a 55 year old worker seriously injured at work would be entitled to the same lump sum.  The difference being that your average 55 year old worker has had 30 - 40 years in the workforce to accumulate financial stability.  What happens to a young family of a deceased worker in his early 20's?  How on earth would they live?

You see this is what happens when you remove the right of common law to people who have been hurt by someone else's negligence.  I am reading the Review document relating to compensation and common law - page 34.

The right of an injured worker to sue their negligent employer for damages at common law is a feature of workers compensation schemes in a number of States. The existence of common law rights for injured workers is a fundamental departure from the ‘no-fault’ basis of schemes such as South Australia. A common law scheme creates an environment in which a worker can elect to pursue statutory entitlements through the workers compensation scheme, or (subject to meeting access criteria and thresholds) to pursue a legal remedy through the broader judicial system and sue their employer for damages. Supporters of common law in workers compensation suggest that the extent of damages available in the common law setting exceeds the entitlements available in a statutory scheme in the cases of the most seriously injured. This is largely a subjective matter, and depends on the facts of individual case. What is not disputed however is that the nature and form of the payment is different, in that a common law remedy results in the award of a one-off payment for damages with no further access to entitlements, whereas the statutory scheme is more associated with the provision of ongoing financial and other assistance. I would like to meet just one or two seriously injured South Australian workers who would agree with this statement.  Did they feel fairly compensated for the loss of their future earnings?  Did the family strive forward or regress?  It would be interesting to compare notes with a seriously injured worker from one of those 'other' states who was able to pursue compensation through common law.

I take enormous offence to the notion that irrespective of how 'negligent' an employer is/was, they are completely protected by this no-fault system.  No wonder our workplace safety record is so damned poor - there simply is no fear of consequence.  The criminal prosecutions of negligent employers via the Industrial Courts has been a bit of a wrist slapping exercise to date so there's not much to worry about there either.  

The Review attempts to convince us that our system is actually better because it offers more over time ( for example income maintenance / medical costs) but it does not substantiate that with a range of examples - in fact it clearly states that it is largely a subjective matter.  

Edith commented at this meeting how difficult it is to survive on a 50% income reduction on the death of your husband.  Based on this proposal by WorkCover, a spouse on partial dependency would only quality for 35% income maintenance set at a flat rate.  

Section 44 - Compensation payable on death

Process for determining dependency

Amend so that the percentage of a deceased worker's notional weekly earnings paid to a partially dependent spouse in the form of weekly payments be fixed at 35 per cent.

It appears from s44 that the original intention of the Parliament in relation to the amount of the weekly payment available to spouses, even in the case of a totally dependent spouse,  was not to replace the deceased worker’s income but instead to provide some compensation. The amount the Parliament fixed as a maximum for this compensation was 50 per cent of  the deceased worker’s notional weekly earnings. It is possible in cases where there is more than one spouse that the total compensation payable could be up to 100 per cent of the  workers notional earnings, this would be inconsistent with the thrust.

Inconsistent with what thrust?  

Edith made some strong points in her comments at this meeting.  The lump sum amount is normally swallowed up very quickly to reduce or pay off debts like mortgages and loans.  While there's no question that this helps to ease some of the burden, we are all too aware of the cost of living on a day to day basis and this is really where the purse gets a work out on a day to day basis.  

For example, the widow of a deceased factory worker who may have been earning $700 p/w would find herself about to face making ends meet on $350 per week.

Do these people who make these recommendations ever do grocery shopping?  Do they know what a head of lettuce costs these days?  A loaf of bread - 2 litres of milk?  How about our astronomical electricity costs?  Are they aware that the average car will cost about $80.00 to fill each week?

Oh and let me just reiterate here - this catastrophic event was not of 'her' doing.  She and her life partner were busy working toward a future plan when someone else decided workplace safety didn't hit the radar.  BUT 'she' will be the one to carry the burden for the rest of her life as she battles to keep her head above water let alone deal with the real demands of her broken family.  

How on earth can we call this a no-fault system when the innocent are being punished?

Rather ironically of course, those who have the most control over the safety of our workforce are protected by a no fault legal system. 

Under common law, when someone wrongs another, the idea of reparation is to compensate for what is lost.  Under the WorkCover scheme one can expect much less - and that appears to be something that has not changed one iota within this Review.  

The 35% flat rate relates to a partially dependent spouse.  A partially dependent spouse may be a wife or defacto who, for example, is also working to help pay the bills.  According to the feedback I have had regarding this, this partially dependent spouse would be entitled to 35% of her deceased husbands / partner's income.

There may also be more than one spouse.  No.2 spouse who is perhaps an ex-wife who received maintenance payments for helping to raise children in a previous relationship is also entitled to some benefits.  Under this recommendation, these 2 spouses would share the income maintenance equally with a 35% / 35% split.  In a case like this, the 2nd spouse could end up with significantly more income while the working spouse has lost 65% of the family income.

The children incidentally are not affected by this proposal, they continue to be entitled to 12.5% of income maintenance until the age of 18 irrespective as to which spouse they live with.

None of this makes much sense.  How could the family that the deceased worker lived with be so much worse off?  

This really is tricky from all corners.  I don't envy the people trying to repair these problems in trying to find 'one shoe fits all' in trying to do the right thing by all parties.  Clearly these family situations are never that straight forward.  When I spoke with the gentleman at WorkCover who compiled these proposals, one senses again a sense of frustration - how do you repair something like this when so many variables come into play?

I suspect the best way is to give common law a chance to set things right.  Give people the choice - - ?

SUMMARY

These new proposals by WorkCover, while they appear to TRY to address some of the issues faced by families, they are in effect a blow torch to an already raw situation.  The increased lump sum will only serve to remedy the increased mortgage.  The income maintenance for a dependent spouse is still inadequate and will become more unworkable with the reductions in entitlement for those women who have faced the need to help to pay the bills..

The upside though (and we have to see this for what it is) is that we are now in a rhythm of talks with WorkCover and these discussions will continue - at the very least we can keep addressing the treatment of the family and the issues they face.  We are most grateful that these delegates gave us their time and ears and indeed have offered to keep the lines of communication open.

When Edith, Cynthia and I discussed the meeting directly afterward, we felt overall that it was worthwhile - it is at the very least a start.  It was also evident to us that there are some very good people employed by the organisation and who sincerely want to see the scheme work for everyone.

We're a long way from being pacified though.  Gosh ... best be getting my head stuck into that submission.  Time is a ticking...


WORKCOVER AND BUSINESS SA SAY THE ONLY WAY TO FIX THE $1 BILLION UNFUNDED LIABILITY IS TO PENALISE INJURED WORKERS

15th May 2007

I see by recent news headlines that our WorkCover scheme is about to get a major overhaul as the unfunded liability is about to hit the $1 billion mark in the next few weeks.   Interesting.

I darn near choked when the spokesperson from Business SA blamed this astronomical unfunded liability directly at the...what did he refer to them as?  Something along the lines of a compo-happy workforce?  Apparently... evidently, it's time to get tough on the somewhat lazy (injured) South Australian workers who clearly been sending the system broke.   

Through poor management, injured workers have become an easy scape goat.

Another thing that has become evident is that a dead worker is cheap...Yes, it's true. 

There is a fair proportion of deceased workers who help to keep the fund propped up.   

For anyone who has lost a loved one in a workplace accident, one of the things we most often hear from people who clearly know no better, is that when a worker dies as a result of a workplace accident, that there will be compensation.

Wrong.  Dead Wrong.

The scheme only pays out when there is complete financially dependency.  So if a fatal injury occurs to a worker who is, for example, unmarried - or - without dependants - or - with children over the age of 18 - or - with a defacto spouse of less than 5 years...it's highly probable none of these will meet the death benefit criteria.  

These benefits go back into the scheme which means that a fair portion of fatalities become a financial prop up.  Employers still paid the levy for those workers...but WorkCover keeps the dosh. 

The families who miss out due to the criteria gaps are left without real compensation.  Companies can not be sued under common law - they are protected by la.  Should a company be found guilty of negligence and cause death, the company only must answer to a summary offence in the Industrial Law Courts.  The fines imposed for breaches under the OHS&W Act go into the Government coffer.  

There is sometimes a token amount awarded by the Magistrate at the time of sentencing.  The loss of a spouse is worth $4200 and the loss of a child is worth $3200.

So when a deceased worker's family does not meet the WorkCover criteria...(which remember is not rare given a reasonable sum of the workforce is not married or may be separated from their spouse - or living in a younger than 5 year defacto relationship)

The benefit benefits WorkCover

The fine benefits the Government

The company is protected from civil action

Perhaps this wouldn't be such an issue if the death benefits these deceased workers helped to resurrect an injured workers life after he's had his arm crushed, but we can safely assume that the squandering of funds in the Industrial Court to fight an injured workers entitlements is highly objectionable.  

But let's get back to this idea Business SA seems to have about the injured worker's who have sucked the system dry?

Thank the Lord for Janet Giles (who was also interviewed) happened to mention that maybe we should look at improving workplace safety before hanging those injuries.  Hey it's just a thought, not a bad one at that.  

Mind you, it's little wonder Business SA would not support that reasoning.  

Business SA are well rehearsed protesting against any push to improve safety via tougher legislation.  "Hands off our members" - they seem very prepared to fight law reform for the sake of maintaining the status quo.  Apparently...evidently, all this OHS stuff is too hard, too time consuming and inconvenient - especially for the small business holding.  So I guess this means we all will just have to rely on goodwill and hope business does the right thing.    

And what about this picture being painted of the lazy, compo-happy workers sitting around watching TV, sucking the system dry...?

Just recently in a meeting with a couple of the SafeWork SA staff, we quite coincidentally started on this very topic.  

We discussed the type of worker that appears to be most vulnerable in the workplace.  The consensus was that lazy people tend to be least likely to be injured at work.  The workers who invariably end up getting hurt are more likely to have a good work ethic.  These are the people who push themselves - they try very hard to impress, to do a little more - to meet deadlines and meet the demands of pressure placed on them.  

They are perhaps unaware of the risks or driven so hard to prove their worth that they miss the signs...but lazy?  No I think we agreed that lazy workers are the least likely to get hurt.  

I wonder if anyone has considered the possibility that the injured workers on long term claims stay there because they are disillusioned by the way they have been treated.  They did their job, they got hurt and the system is squeezing them.  I'd probably dig my heels in too.

Am I suggesting there's no such thing as workers compensation fraud?  Of course not.  But these cases make up a small number of the total picture.   

WorkCover's philosophy is to encourage injured workers to go back to work.  It doesn't give much thought to those who are killed...because clearly these workers can not return to work.  

If we look at the bottom line - a serious accident is a real burden on the system because there's a high  likelihood of a long term claim.  

A death on the other hand?  Well...all kinds of possibilities there.  One can't help but wonder whether the bean counters breath a discreet sigh of relief when they realise the dead worker is young / has no children etc etc etc etc etc etc etc etc - because all that equals money saved.

As for Business SA?  Well, they want the cake, they want the plate and damn it, it better be wrapped in cotton wool as well!