This letter is for injured workers who have sustained a work-related injury in Western Australia and who have already made a workers’ compensation claim.
Hi, I’m Harry Evans, the founder and principal of Evans Injury Lawyers. We specialise in WorkCover applications in Western Australia and also have clients in the Eastern States.
I attained a Bachelor of Laws degree and a Bachelor of Biomedical Science degree from Victoria University of Wellington, New Zealand and I am admitted to the High Court of New Zealand and the Supreme Court of Western Australia.
I am the proud father to twin daughters who were born in 2001 and a daughter who was born in February 2021, a granddaughter, a grandson and a cheeky German Shepherd called Amazon.
I have personally made hundreds of successful Work Cover applications to get workers paid their wages, medical expenses and legal costs.
Here are the 5 secrets that insurers don’t want you to know and 3 solutions to common mistakes that workers make:
Secret 1: Insurers don’t want you to know that you have a work injury
Most workers’ compensation claims that are disputed by insurers are those where a worker has a pre-existing condition such as degenerative disease in their back or they have had a previous surgery to their knee or shoulder, for example.
The insurer tries to argue that the worker’s employment had nothing to do with the workers’ current incapacity or need for surgery or there is insufficient evidence to prove that a work injury has occurred.
This often occurs when the worker has had a hard day of work, their body aches and they go home or if they are FIFO, they go on R&R. The next morning, they wake up in excruciating pain and they can’t move.
Or a worker twists or trips at work and then all of a sudden they require a major surgery that seems out of proportion to the work activity that the worker was doing. For example, a worker turns quickly because she is rushing to met a deadline, she twists her knee and then she needs a total knee replacement.
One of the most important principles in workers’ compensation is that an employer and their insurer, must take the worker as they find him or her.
If a worker has a pre-existing disease and that disease is aggravated by the workplace and the workplace contributed to a significant degree, the insurer must pay for the worker’s time off work and medical expenses.
“Significant” means “not insignificant”, “not negligible”, “not fanciful” or “not far fetched”. In percentage terms, “significant” could be as low as 5-10%, although the lower the percentage, the harder it is to prove.
However, an aggravation of a pre-existing disease can also be treated as a “personal injury by accident”. This means that a worker only has to prove that he or she had a sudden or identifiable change in physiology, which is often detected by an x-ray or MRI, and that change happened while they were working.
These are often very technical legal arguments, so make sure you have an experienced lawyer fighting for your rights.
Secret 2: Insurers don’t want you to know that they have to pay your penalty rates, allowances and overtime
For the first 13 weeks of incapacity, an insurer will pay you the average of your base rate, overtime, penalty rates and allowances. From the 14th week onwards, they try to only pay you your base rate. For FIFO workers, miners and truckies, overtime, penalty rates and allowances make up a big part of their wages.
I once had a client whose weekly wage was around $2,000 per week, but after 13 weeks, the insurer stepped his wages down to his base rate, which was $1,000 per week. I made a WorkCover application and the worker was paid thousands of dollars in backpay as well as his legal costs.
Make sure you have an experienced lawyer who knows how to calculate your rate of pay properly and make a WorkCover application if the insurer refuses to pay your entitlements.
Secret 3: Insurers don’t want you to know that they have to pay for your surgery
Often, if a worker has had surgery, on their knee or neck, for example, some time in past, the insurer will dispute the worker’s current need for surgery, blaming a pre-existing condition. Then because the worker needs surgery now, the insurer will also threaten to stop the worker’s wages and pressure the worker into taking a low settlement offer.
An insurer can avoid paying for a surgery if in the past the worker had a surgery and the surgeon at that time predicted with reasonable precision that a worker would need another surgery in the future.
In most workers’ situations, this is impossible for the insurer to prove, but the insurer will still try to convince a worker that they can prove it and then force a worker to settle his or her claim when the worker still needs workers’ compensation. Don’t let the insurer do this to you.
Secret 4: Insurers don’t want you to know that stress claims usually have nothing to do with who is at fault
Workers’ compensation is a no fault system, which means that the employer does not have to be at fault. This is different to common law claims where a worker must prove that the employer was at fault. This is often overlooked when it comes to stress claims, especially workplace bullying claims.
If a worker suffers a stress injury such as depression, anxiety, acute stress reaction or adjustment disorder, the worker does not need to prove that a boss or co-worker bullied them, although that would be useful evidence.
The worker only has to prove that:
An event happened, such as a boss or co-worker saying something or writing something to the worker.
The worker had a psychological response to the event that has been diagnosed by a doctor.
The psychological response results in the worker requiring time off work or the need for medical treatment.
The event was not reasonable disciplinary action, dismissal, demotion, transfer, retrenchment or redeployment.
This is a greatly simplified explanation of proving stress claims and there are more legal technicalities, but that is the gist of it. If a worker is being disciplined or dismissed and they suffer a stress injury, they have to prove that the discipline or dismissal was harsh and unreasonable, but this is usually a matter of common sense. Insurers and employers often complicate stress claims, which drags them out, makes workers run out of money and makes workers want to give up.
Secret 5: Insurers don’t want you to know that they will make 3-5 settlement offers
If the insurer wants to pay you a lump sum to finalise your claim, the insurer will only make 1 settlement offer to you. However, if you have a lawyer, the insurer will often make 3-5 settlement offers and the final offer will often be almost twice as big as the first offer. Insurers want you to represent yourself because then you are more likely to accept a lower offer and you are easier to ignore.
Mistake 1: Not claiming annual leave
A lot of insurers lead a worker to believe that if the worker is receiving workers’ compensation payments for time off work, but the worker wants to go on annual leave, that the worker has to stop compensation payments and instead receive annual leave payments while they go on holiday. This is not true.
When an injured worker goes on holiday, they may receive workers’ compensation payments and annual leave payments at the same time.
Often, when a workers’ compensation claim is pended by an insurer, a worker will receive sick leave and then annual leave. When the claim is accepted, some workers don’t get their sick leave and annual leave reinstated and could lose thousands of dollars.
Make sure you get an experienced lawyer who knows about your rights to annual leave.
Mistake 2: Not claiming travelling expenses
A lot of workers’ don’t claim their travelling expenses, which is currently $0.46 per km. If a worker makes a 100 km round trip to see a doctor, chiro, physio, psychologist or rehab provider, they can claim $0.46 per km x 100 km = $46 from the insurer. Most injured workers travel at least 1,000 km per year, which is $460 that can be claimed from the insurer.
Workers can also claim parking expenses, flights, taxi fares, train fares, bus fares, hotel expenses and meals and also expenses for a support person if those expenses are necessary to see a doctor.
Make sure you get an experienced lawyer who knows about your rights to travelling expenses.
Mistake 3: Engaging a big workers’ compensation firm or “big man”, but actually getting an inexperienced lawyer who will get replaced by another inexperienced lawyer
How do I know this? I used to be an inexperienced lawyer, who was replaced by another inexperienced lawyer!
Unfortunately, the day to day running of a workers’ compensation file is often done by an inexperienced lawyer with a file load of over 100 files. Although the inexperienced lawyer is supervised by an experienced lawyer, that experienced lawyer is often supervising several other inexperienced lawyers, each with their own file load of over 100 files.
Some experienced lawyers become impatient with inexperienced lawyers, fire them on the spot if they have no protection from unfair dismissal and then replace them with another inexperienced lawyer and then another...
What does that mean to you?
You will be constantly repeating yourself to new lawyers.
You may not receive the customer service you deserve and peace of mind you need during a very stressful time in your life. Your case could go round in circles and drag on for years.
What’s the solution? Engage an experienced lawyer who doesn’t have an unreasonable file load and can solve your workers’ compensation problems quickly.
Mistake 4: Believing the insurer and their doctors
If it has been several months since you made a workers’ compensation claim, but the insurer says it is still investigating, don’t believe them. The insurer is hoping that you will give up and go away or they are waiting to arrange an appointment with one of their doctors who will say there is nothing wrong with you or that your injury had nothing to do with your employment. Some surgeons chosen by the insurer will say that surgery isn’t required even though the worker is in excruciating pain or that the need for surgery is the result of a pre-existing disease that had nothing to do with the worker’s employment.
Don’t believe the insurer or their doctors.
In the cases where the insurer has accepted liability and the worker has been on workers’ compensation for a year or so, the insurer will send the worker to one of their doctors for a permanent impairment assessment. Some of those doctors will not use a special measuring device called a goniometer to measure the range of motion in shoulders and elbows and will instead estimate the range of motion with their eyes and also place a worker’s arm in a position that is beyond their pain threshhold. Some of these doctors will not take into account the radiculopathy down the back of a workers’ legs or a worker’s inability to put on their socks when assessing the permanent impairment of a back injury. This means that the insurer’s doctor is understating the degree of permanent whole of person impairment (WPI) of a worker.
For example, if an insurer’s doctor says that a worker’s WPI in relation to their back injury is 23% (and the employer was negligent in causing the injury), the worker’s claim would be capped to just under $500,000 as the WPI is under 25%. However, if the worker’s WPI was actually 25% because of radiculopathy down the back of the worker’s legs (which the insurer’s doctor chose to ignore) there would be no cap and the worker would be able to claim loss of wages until retirement, which could be over $1,000,000.
Some of the insurer’s doctors issue a FINAL certificate and say that a worker is fit for their pre-injury duties, when they are not. The insurer then uses that as a justification to stop weekly payments of compensation, but then a couple of months later, the employer terminates the worker’s employment because the worker can’t perform their pre-injury duties. The worker is left with no workers’ compensation or wages.
As soon as you make a workers’ compensation claim, you should consult an experienced lawyer who can help you find the right GP, surgeon, workplace rehabilitation provider and pain specialist. If you don’t, the insurer will choose their own experts and you could lose (hundreds of) thousands of dollars in compensation.
Mistake 5: Engaging a law firm who has no intention of making an application for arbitration on a no win no fee basis
Often, I get phone calls from injured workers who want to change law firms because their current lawyer refuses to make an application for arbitration on a no win no fee basis, but instead insists that they deposit $10,000 into their trust account. However, if the injured worker leaves the law firm, they will be issued a $10,000 bill to be paid if their claim settles for a lump sum. I have noticed that in these situations, the law firm has attempted to settle the worker’s claim by an informal conference. This is a very ineffective strategy because the insurer is not under pressure and this results in that law firm racking up a $10,000 bill and the insurer making low-ball offers that most workers refuse.
Alternatively, the law firm makes an application for conciliation with the intention of turning the conciliation conference into an informal settlement conference. On the face of it, that is a good idea, however, the insurer’s lawyer soon realises that the law firm has no intention of making an application for arbitration if the settlement conference fails and so makes a low-ball offer. Most workers refuse the low-ball offer. The law firm refuses to make an application for arbitration on a no win no fee basis. The worker is left with no lawyer and a $10,000 bill.
However, the best settlement offers are made by an insurer after an application for arbitration is made – at a pre-arbitration conference or just before an arbitration hearing.
Don’t let this happen to you by asking this question to your prospective lawyer - “Do you have the intention of making an application for conciliation and then an application for arbitration on a no win no fee basis if necessary? No? I wish you the best of luck.”
Don’t let your prospective lawyer issue you a bill for a failed settlement negotiation with this question - “If you fail to settle my claim and I move onto another law firm, will you issue me a bill? Yes? I wish you the best of luck.”
An experienced lawyer can form a preliminary view of a worker’s case, based on what the worker tells him, in a couple of minutes. It will take him about an hour to form a case theory and case strategy, after reading the relevant documents and doing some fact checking. A $10,000 bill with no result for the worker represents a lawyer going around in circles for 25 hours of legal work over several months – usually because they are avoiding making a WorkCover application. If a lawyer can’t give you a clear, simple plan after 1 hour of legal you should find another lawyer before he racks a bill up.
Here are some results that I have achieved for my clients:
Insurer disputed just about everything…
“I first met Harry Evans when he was working for another law firm. I was so impressed with his customer service that I followed him to Evans Injury Lawyers and I also referred several workmates to him as well. Harry made over 10 WorkCover applications for me because the case manager at the insurer disputed just about everything on my claim. Harry made sure I received all of my entitlements and had my legal costs paid for.” David H, Two Rocks
Insurer kept ignoring worker…
“I made a workers’ compensation claim, but the insurer kept ignoring me. Evans Injury Lawyers requested my file from the insurer, but they didn’t produce it, so Evans Injury Lawyers made a WorkCover application. Then the insurer wouldn’t accept liability for my wrist injury, so Evans Injury Lawyers made another WorkCover application. Then the insurer wouldn’t pay my wages at the right rate, so Evans Injury Lawyers made a WorkCover application. Then the insurer randomly didn’t pay my wages, so Evans Injury Lawyers made a WorkCover application. Then it was time for my wrist surgery. Evans Injury Lawyers was about to make another WorkCover application, but the insurer agreed at the last minute! When it was time to settle my claim, Evans Injury Lawyers got me a good lump sum payout and all of my legal costs paid for by the insurer.” Stefan M, Butler
Insurer disputed anxiety and dental injuries as the result of an assault in the workplace…
“My son, who is intellectually handicapped, was assaulted by one of his co-workers and required medical treatment and wasn’t able to return to work because of anxiety. The employer tried to blame the assault on my son, but he didn’t throw any punches or provoke the co-worker. He walked up to my son and punched him in the mouth. I together with his mother and siblings tried many things and ways ourselves to get justice and compensation for Ben, but with little success. We made a WorkCover application ourselves, but the insurer wouldn’t listen to us. We then realised that we needed professional help and got in contact with Evans Injury Lawyers who made a WorkCover application for my son. We settled the claim for a lump sum so that my son could move on to a safe workplace and the insurer paid for legal costs. Harry was very professional and, though it’s a sad indictment on our son’s employer and the family should had done it in the first place, it shows that professional help and the right person on your side is essential before they will listen to you. Thank you Harry.” David K, Embleton
Insurer disputed hernia…
“I got a hernia when I was carrying mesh as a nipper and needed surgery the next month. The insurer disputed liability, but Evans Injury Lawyers made a WorkCover application and the insurer paid for my wages, surgery and legal costs.Harry showed me a professional and more personal experience compared to the larger law firms. Alby P, Currumbin, QLD
Insurer disputed liability because of pre-existing bipolar disorder
“I was treated unfairly by some parents of my students and then I dreaded going back to work as a teacher. The insurer tried to blame my condition on my bipolar, which hadn’t been a problem throughout all my years of teaching. I contacted a few lawyers, but only Evans Injury Lawyers listened and cared enough to make a WorkCover application and I was able to settle my claim and move on with my life.” Kat H, Girrawheen
Insurer disputed liability for shoulder injury…
"I'm an Uber driver and I injured my right shoulder while I was working. Evans Injury Lawyers took my case on a no win no fee basis. We didn't win, but Evans Injury Lawyers put in over 30 hours of legal work for me, didn't charge me and gave me a fair go." Sam
Insurer disputed liability because of pre-existing knee condition
“I had a surgery on my knee over 10 years ago, but then I injured my knee when I turned a corner when I was working. The insurer disputed liability and then ignored my phone calls and emails for months. Evans Injury Lawyers made a WorkCover application and the insurer paid my wages and legal costs.” Kevin C, Kalgoorlie
Insurer refused to pay penalties and then refused to pay decompression surgery…
“I received a promotion and payrise, but then injured my back the next day. My employer then reneged on the deal and paid my workers’ compensation at my old rate. Evans Injury Lawyers made a WorkCover application and I was paid thousands of dollars in back pay and had my legal costs paid for. Then the insurer hired a doctor to say that I didn’t need decompression surgery on my back, which was nonsense. Evans Injury Lawyers made another WorkCover application and the insurer had no choice but to pay for my surgery and legal costs.” Richard F, Kalgoorlie
Insurer only made 1 settlement offer to worker…
“The insurer made me a settlement offer, but I didn’t know what to do. My union referred me to Evans Injury Lawyers and they made the insurer increase the settlement offer and pay for my legal costs.” Pin J, Bennett Springs
Insurer refused to pay psychology expenses...
“The insurer accepted liability for my right shoulder injury, but then I also suffered a lot of stress because the rehab provider that my employer chose was ignoring me and trying to get me back to work when I was still in pain. I had to see a psychologist for my stress, but the insurer refused to reimburse me. Evans Injury Lawyers made a WorkCover application and not only did I have my psychology expenses reimbursed, I was paid a lump sum so I could move on with my life and the insurer also paid for my legal costs.” Russ P, Wembley
Insurer disputed back and bi-lateral ankle injuries…
“I injured my back while making a bed as a utility and then I also injured both of my ankles from wearing work boots. My employer paid my wages and tried to keep my injuries out of the workers’ compensation system. As soon as I made a claim, the insurer disputed liability. Evans Injury Lawyers made a WorkCover application and then I was able to settle my claim for a lump sum and have my legal costs paid for so I could move on with my life.” Debra K, New Zealand
Insurer stopped paying weekly payments…
“The insurer accepted liability for my back injury, but then I exhausted the prescribed amount for weekly payments and so the insurer stopped paying my wages. I didn’t qualify for an extension, but Evans Injury Lawyers managed to get me a small lump sum payment and get my legal costs paid by the insurer.” Andrew M, Kambalda
Insurer ignored the worker’s request for travelling expenses reimbursement...
“The insurer accepted liability for my claim, but the insurer was ignoring me when I wanted my travelling expenses reimbursed. Evans Injury Lawyers came along and made sure the insurer paid my travelling expenses promptly. Then Evans Injury Lawyers referred me to their preferred rehab provider, which led to the insurer paying for a worker to help me as I was employed as an on-site manager. When I wanted to settle my claim, Evans Injury Lawyers got me a lump sum payout, which I was very happy with and also had my legal costs paid by the insurer.” Martin B, South Yunderup
Insurer disputed back injury because of pre-existing condition
“I had a sore back when I was pregnant and the insurer tried to say that was a pre-existing condition and disputed liability for a back injury I got when I was on site. I didn’t want anything more to do with the employer, so I resigned and walked away, but I was left with medical bills. A year later, I was referred to Evans Injury Lawyers who made a WorkCover application for me. I had my medical bills paid for and I received a small amount to move on with my life as well as my legal costs paid by the insurer.”
Catherine W, Leda
Insurer refused to pay quarterly bonus
“I was a truck operator in the mines and received a quarterly bonus. But when I was injured, the insurer refused to pay my quarterly bonus, which was around $3,500 per quarter. Evans Injury Lawyers made a WorkCover application and the insurer agreed to pay my quarterly bonus and legal costs.” Stephanie K, Kalgoorlie
Insurer disputed back and elbow injury from slip and trip…
“I fell on a greasy floor at work and injured my back and right elbow. My employer sent me to their doctor, who acted like there was nothing wrong with me. My employer didn’t accept liability for over 5 months, told me I could only see their doctor, which wasn’t true and didn’t inform me of my legal rights. Evans Injury Lawyers made a WorkCover application and liability was accepted a couple of weeks later, I chose my own doctor and the insurer paid for my legal costs.” Brian L, Mosman Park
Insurer disputed total knee replacement surgery…
“The insurer’s doctor said I was fit for my pre-injury duties. Evans Injury Lawyers sent me to their doctor and it turned out I needed a total knee replacement! The insurer tried to weasel out of paying for the surgery, but Evans Injury Lawyers made them pay up and also my legal costs.” Suzanne W, Port Kennedy
Insurer disputed wrist injury and then refused to pay allowances
“I developed right carpal tunnel syndrome from repeatedly washing dishes at work as a utility. The insurer made excuses for 2 months, but then I called Evans Injury Lawyers who made a WorkCover application within a couple of days. The insurer accepted liability and paid for my wages, medical expenses and legal costs. Then the insurer refused to pay my allowances! So, Evans Injury Lawyers made another WorkCover application and I was paid my allowances and further legal costs. Evans Injury Laywers then made sure the insurer paid for my wrist surgery and then made sure I received a lump sum payout so I could move on with my life.” Jessica T, Carnarvon
Insurer refused to pay for physio expenses
“The insurer’s lawyers made all kinds of excuses for the insurer not to pay for my physio expenses, so Evans Injury Lawyers made a WorkCover application. A couple of days before the conciliation conference, the insurer agreed to pay for my physio expenses. But, then the insurer’s lawyers disputed my legal costs, so Evans Injury Lawyers made another WorkCover application. The insurer was ordered to pay my legal costs as well.” Margaret, C Newcastle, NSW
Insurer disputed depression
“My employer was having financial problems and was not able to pay my wages on time and when he did pay me, I was underpaid. This put me under a lot of financial stress and I developed depression. Evans Injury Lawyers quickly made a WorkCover application and I was paid my wages, medical expenses and legal costs so that I could move on with my life.”
Jim E, Coolgardie
Insurer disputed liability because of pre-existing back condition…
“The insurer was trying to look for a reason to deny liability because of my pre-existing back condition. Evans Injury Lawyers made a WorkCover application and then the insurer had no choice but to pay my wages, medical expenses, travelling expenses and legal costs.” Karen B, South Yunderup
Insurer refused to pay penalty rates…
“The insurer was not paying my penalty rates, only my base rate. Evans Injury Lawyers made a WorkCover application and I received thousands of dollars in backpay and had my legal costs paid by the insurer.” Charmaine K, Yanchep
Insurer made excuses and refused to accept liability for right elbow injury and left shoulder injury…
“The insurer made excuses and refused to accept liability for my right elbow injury, which clearly happened while I was working. When I was on a return to work program, I injured my left shoulder as well, which the insurer ignored. Evans Injury Lawyers made a WorkCover application and the insurer had to pay for my wages, surgery, and legal costs. When it was time for settlement, Evans Injury Lawyers got me the maximum payout for wages.” Rebecca H, Warnbro
Insurer disputed back surgery…
“The insurer hired a big law firm to dispute payment of my back surgery and tried to blame it on pre-existing degenerative disease. Evans Injury Lawyers made a WorkCover application. A day before the arbitration hearing, the insurer caved in and paid for my surgery and legal costs.” Sharon N, Clarkson
Insurer refused to pay annual leave…
“For the first couple of weeks after my injury, I was paid annual leave while my claim was pended. A couple of years later, Evans Injury Lawyers looked through my pay slips and noticed my annual leave hadn’t been reinstated and made a WorkCover application after my employer failed to fix the problem. I had my annual leave reinstated, which was several thousand dollars and the insurer had to pay for my legal fees.” Suzanne W, Port Kennedy
Insurer refused to pay penalty rates…
“Evans Injury Lawyers made sure my penalty rates were paid and I received all of my backpay and had my legal costs paid by the insurer.” Terry D, Uttakarra
Insurer disputed allowances…
“The insurer accepted liability for my right shoulder injury, but wasn’t paying for my “higher allowance”. The case manager at RiskCover was very difficult and wanted to litigate all the way to the Supreme Court. Evans Injury Lawyers made a WorkCover application. The insurer continued to be difficult, but we were eventually able to negotiate my backpay and had my legal costs paid for. When it was time to settle my claim, Evans Injury Lawyers got me a good lump sum payout.” Glenn V, Warnbro
Insurer disputed neck injury…
“The insurer disputed liability for my neck injury from looking at computer screens for long hours without breaks. The insurer tried to blame my neck injury on a motor vehicle accident. Evans Injury Lawyers made a WorkCover application and I received a lump sum payout and the insurer paid for my legal costs.” Glenis G, High Wycombe
Insurer refused to pay for knee surgery…
“The insurer accepted liability for my left knee injury, but then refused to pay for my surgery because I had had surgery on that knee a couple of years ago. Evans Injury Lawyers made a WorkCover application, but as I live in Queensland, my aunty and father attended the conciliation conference for me. I decided to take a good lump sum payment, which was approved by my aunty and father and was more than enough to pay for my surgery”. Angus F, North Lakes QLD
Insurer disputed knee injury…
“The insurer disputed my left knee injury because I had a previous claim for my left knee with another employer a few years before. I was claiming for a few months off work. The insurer represented itself at conciliation and wasn’t interested in my claim. When Evans Injury Lawyers made an arbitration application, the insurer hired a big law firm, who seemed to talk some sense into them. I received my backpay and the insurer paid for my legal costs.” Wayne B, Somerville
Insurer disputed liability for suspected heart attack…
“I was working underground and I felt a pain in my chest and couldn’t continue working. I saw a doctor because a heart attack was suspected. It turned out I was dehydrated and fainted. The employer wouldn’t allow me back on site until I was cleared by cardiologist, which I was, but then the employer shut down operations. In the mean time, I wasn’t paid any wages. Evans Injury Lawyers made a WorkCover application and I had my wages paid and my legal costs paid by the insurer. Phil H, York
Insurer disputed work-related depression…
“I suffered depression because my employer wasn’t paying my wages on time and I was also overworked because my co-workers were quitting. Evans Injury Lawyers made a WorkCover application and I was paid all of my backpay, expenses and legal costs. I was also paid an amount for the future so that I could move onto a new job.” Simon, Baldivis