Your rights what they are and where do they come from

Injured workers have rights in The workers compensation System.

There are basic rights which are in legislation

There other rights which either in different pieces of legislation or what's can be called assumed rights.

There is the right to make a workers compensation claim to begin with.

The right to have that claim assessed and to receive treatment if and when that claim is approved by the insurer.

There is the right to be told what is happening with your claim.

The right to seek legal review of your claim if denied.

The right to legal representation.

and the right to see your own doctor.

The right to not be sacked (within the first 6 months) because you were injured at work).

All of these are in the legislation.

Other rights are in other pieces of legislation.

The right to be treated with respect.

The right to access medical care

The right to access your medical files and the right to be treated without discrimination by everyone involved with the system.

These are not in the workers compensation legislation but they are in other pieces of legislations which everyone must adhere to.

Other rights are assumed by the workers compensation legislation.

The right to choose your medical team, your treatment provider is part of the right to agree to your medical treatment.

The right to have a say in what your medical treatment plan is- is another one.

There are other rights that you may not think you have.

The right to change doctors, or change your medical team.

the right to choose the way the insurer communicates with you

the right to have no one but you in your doctors surgery.

the right to agree to or refuse medical treatment.

The right to have your medical care kept in confidence by any of your medical team.

Some of these rights are absolute (your right to make a workers compensation claim for instance) some of these rights are limited (your right to a review of your capacity to work)

and some of these rights are undermined by other pieces of legislation in the workers compensation system.

An example of a right that is undermined is your right to privacy.

You have an absolute right to have your medical record kept private from everyone.

If you access this right though, it may prevent an insurer from making an appropriate assessment of your condition and their liability for that condition.

That is why the legislation uses the term “reasonable” reasonable here doesn’t have a specific meaning but what would be reasonable is for the insurer to have enough information to make an assessment on your injury (whether it is work related) what wouldn’t be reasonable is complete access to every single medical record your doctor or the public health system may have that involves you.

For instance: you may have had a skin cancer removed ten years ago. You may have put in a claim for compensation because of bullying and harassment. The fact that you have previously had a skin cancer has absolutely nothing to do with the psychological and emotional abuse you have suffered at work. The insurer has no right to know about your previous skin cancer.

There are other rights that the system tries hard to make sure you cant access.

You have a right to have a support person at any meeting you have with an insurer, investigator, medical specialist or with your employer.

with particular reference to medical specialists the regulator and insurers do not recognise that you have this right. That’s because it’s not theirs to give (or to take away) it comes from the professional guidelines of medico-legal specialists. Their efforts should be futile though. You have that right whatever they say.

It’s the same with investigators or your employer- though these don’t come from a specific professional code of practice. They come from employment law.

Finally there are rights that you have which the system, though acknowledging that you have those rights, does their upmost to prevent you from accessing them.

You have a right to legal representation when you appeal a work capacity decision, but a solicitor doesn’t have a right to be financially reimbursed for helping you.

You the right to have a workers compensation commission ruling reviewed by the NSW supreme court. - at this time you have to pay for it yourself though - Both of these rights are therefore as good as annulled for the vast majority of injured workers.

Finally you have the right for your claim and access to medical and financial support completed as swiftly as possible. this is indisposed throughout the legislation with quite a number of let outs for insurers in particuar.

The right to provisional liability.

this is a right to have the insurer grant you provisional liability for up to 13 weeks while they are assessing your claim in the first instance. this right is mitigated by a list of 7 exceptions an insurer can impose though. From receiving the claim late, to not having enough information on the claim these exceptions can and are relied upon by insurers to deny provisional liability for the slightest infraction

  • you do have a right to have this decision reviewed though either by the insurer or through the regulator.

the provision of medial support.

This is a right to receive medical treatment for your injury. the issue here is three-fold. the first is that the insurer has 21 days to agree to the treatment. The second is that any (and every) claim for medical support is considered a new claim (not just an extension of an old claim, even if it is just that). The third is that the insurer can reject the claim without a significant reason for their rejection.

you have a right to appeal these decisions though, internally, through the regulator, or through the workers compensation commission. This is one right where justice delayed can be justice denied through as most people’s injuries will continue to deteriorate while they work through this appeals process.

The reliance on your treating doctors reports.

The legislation is fairly definitive in its instructions to insurers that they should be relying on the reports they receive from your treating doctors with regard to your claim and in particular to your medical treatment.

Unfortunately the legislation allows for the insurer to use a “not enough information” card here. This means that, despite any thoroughness of your doctor, the insurer can insist they don't have enough information to make a call on your claim or your request for medical treatment, and send you off to one of their paid medical specialists for “further assessment”.

The right though it exists is only as good as the insurers reluctance to enforce that right.

Where can you find your rights?

The main act is of course the two workers compensation acts 1987 & 1998 ​but all your other legal rights remain intact. The NSW Health records act, Fair Work Australia, the Discrimination acts (both state and federal), NSW industrial law, the NSW criminal code even. All the rights you had pre injury you have post injury.