The long-awaited meeting takes place, as scheduled, 11 months after my lodgement of a 93cd application.
Theo and I, together with my WorkCover Assist representative met with the Conciliator and K – a rather gruff and insensitive guy who is representing my VWA-appointed Agent. We have not met him before nor to our knowledge has he been involved in managing my claim. From the outset, it was obvious that he would fight against us every inch of the way. You can well imagine that the spirit of conciliation was lost upon him. He offered no apology for his rude behaviour.
If you do not know, conciliation is a voluntary, flexible, confidential and interest based process. The parties seek to reach an amicable settlement of disputes with the assistance of the conciliator, who acts as a neutral third-party (whilst still abiding by the system’s own legislation).
Just to recapitulate, we had raised three important disputed issues for conciliation:
(i) that part payments for my medical expenses were still outstanding;
(ii) that contrary to the “expert” opinion of my Agent, my working capacity was still limited to 15 hours a week and had not improved since the Medical Panel had examined me nor had I shown that I possess any new skills believed to be contributing to this added work capacity;
(iii) that my Agent was claiming that the date they are required to begin any payments is the date from when I “completed” the 93cd application (September 2013), and not the date on which I had actually lodged the application (June 2013). Until I had provided a current Tax return (which was a mandatory requirement and for the ATO is March of the following year), the application remained invalid; furthermore they consider my early June capacity date to be irrelevant.
This is what transpired:
During and after conciliation it was agreed that the art and design projects (and my social media and advocacy role) were part of my job description and fell within my 15-hours of stated work capacity. Theo’s assistance in my undertaking these projects was acknowledged.
On three occasions, it was stated that the date for my payments to begin was June 2013. But, according to the Agent, the hourly rate at which I was to be paid should have been higher than stated. But how about this suggestion from K? That my employer (Origin of Image) change my payslips (retrospectively) to reflect his suggested increase in hourly rate. The illegality of such action seemed to have escaped him. Theo entertained the idea that K might be wondering whether Soula’s disappearance from the face of the earth could result in an even better financial solution for his employer. But no such magic trick was in his repertoire.
The Agent would not agree to pay my treatment expenses (the implanted nerve stimulator, massage and acupuncture) on the grounds that they were not appropriate for a “chronic pain disorder” of presumed psychological origin – which had been the considered opinion of the first Medical Panel in 2009. As you may recall, the said Medical Panel failed to even consider a diagnosis of pudendal neuralgia which, according to the WorkCover Guides, is an accepted impairment. This was a very serious error of omission committed by a supposedly knowledgeable Medical Panel and it was to cost us dearly.
It is now 10 weeks since we met with the Conciliation Officer. In this time, K departs the stage, having suddenly left the employ of the Agent. He has been replaced by X, who at least was familiar with my case. But he was the person who informed some 70 days after the examination that he disputed the findings of the second Medical Panel. On this spurious ground he advised my WorkCover Assist representative that his employer had changed its mind and was now rejecting all agreements made to date. What a bombshell!
So much for the process of going to Conciliation!
X left me with three options:
- (i) I could take the matters in dispute to Court;
- (ii) I could agree to be reassessed by yet another Medical Panel;
- (iii) I accept payment of weekly compensation from the date of the purportedly “valid” 93cd application (September 2013) to the earliest date that the additional information came to X’s attention, which looks to have been 12 March 2014.
A rider to the last option was that it would not be construed as an admission of liability. “A way of recommendation” to this offer was to also include payment for acupuncture treatments up to the date of the conciliation conference.
The first option was not a realistic possibility as the costs thereof would be prohibitive to us, not in the least because of our desperate financial straits resulting from the deliberate inaction by the Agent. The second option would merely prolong our agony as I would then have to reapply for compensation under 93cd and go through the same rigmarole once again. The third option made me think of the thought experiment of Schrödinger’s cat. Like his cat in the unopened box, which was both alive and dead at the same time, for a period of three months I was to be simultaneously unfit and fit for work.
My poor brain is having difficulty coming to grips with the way in which my VWA-appointed Agent weaves and ducks in order to deny me my rightful compensation. Its inflexible interpretation of the legislation is apparently condoned by the VWA.
Nowhere does it specify that an Agent can take up to 70 days to contest the findings of a Medical Panel, nor is the VWA’s excuse offered to me that X was unwell for the 10 days past the required 60 days acceptable. But after all, this is supposed to be A Comedy of Errors and nothing coming to us from this direction should be a surprise.
Furthermore, to expect a claimant to be able to produce a current Tax Return (which is mandatory) when it has yet to be lodged put me in the ludicrous situation of being medically certified as partially fit to return to work 15 hours a week but left in a state of limbo for three months until the Agent agreed to consider my application a ‘valid’ one, whilst still being allowed to ignore the work capacity date as certified by my GP.
But we are grateful to the Conciliator and to WorkCover Assist who helped me to show that through Theo’s and my own initiative I have created my work position. Theo and I didn’t need to do this, I could have remained in receipt of full compensation payments and Theo could have found his own job instead. Certainly a much more comfortable financial position for us both. Theo was allowed to explain the printmaking process to the VWA-appointed Agent (K) and to point out that it was impossible for me to undertake this task without significant assistance, as was the case for the creation of my book and for my daily work and living. However, their support, although most welcome, failed to make any impression on K or his successor, X. The roles of the Conciliator and WorkCover Assist in this comedy have been reduced to the pointless exercise of pushing pieces of paper around.
On the positive side, with Theo’s help and my completely reconstructed home/office set up we have found a way for me to work. I do not drive a car, vacuum the house, iron the clothes, do the shopping, carry a hand-bag, carry anything weighing over a few kilos (that is on a good day), cannot sit without my pain worsening, and cannot lie on my back. My walking distance is severely limited by pain. I need to carefully plan each of my days and often try to sleep during the day. This is all whilst still receiving treatment, using my pain stimulator daily, and taking medication etc.
We now know that VWA-appointed Agents are as likely as not to interpret and even make up the rules as they go along. Escaping liability by way of frustrating the injured worker to the point where they give up seeking their entitlements, and consigning them to a place where they can no longer continue to fight the uphill battle (financially and personally). Or are they simply buying time to bulk up the interest being paid on injured worker’s funds? These are some of the cruel games they play with injured workers, all under the approving eye of the VWA, or so it seems to us.
For those in the audience who think my little play shares elements found within the works of Franz Kafka, let me hastily assure you that when I awoke today I had not been transformed into a gigantic cockroach. I am still the same creative person as before, and have retained my sense of humour in the face of the deceitful behaviour of these clowns and their employer, even when reflecting upon the Comedy of Errors in which Theo and I have been cast as the unfortunate players. The other actors are now free to move on and entertain their audience with yet another Comedy of Errors while we struggle to put our lives back together.
THE CURTAIN DESCENDS TO THE SOUND OF ONE HAND CLAPPINGWe wish to acknowledge the invaluable contributions of Denise Cosgrove, CEO, Victorian WorkCover Authority, and her staff, without whom this little play might never have been written.