On 13th November 1995 I attended the workers compensation court which only came about having changed legal representation as the original solicitor had dropped the workers compensation case against my wishes so he could run a third party claim. Now with the workers compensation case reinstated the insurer deemed it in their best interests to try for a quick settlement.
I receive a letter from my solicitor dated 14th November 1995 stating "I confirm the settlement of your Workers Compensation rights in the sum of $53,500.00. Full and final settlement of your rights is subject to the approval of the WorkCover Authority".
To gain this money, approximately the amount I had lost in wages, I was required to fill in a Statutory Declaration detailing my intentions regarding my use of the proposed settlement monies. This was completed using the WorkCover Authority's handbook as a guide as to their expectations and thus I used their wording knowing my responsibilities.
The Statutory Declaration was dated 7th January 1996 and stated "I undertake to use the monies to restore myself to fullest physical, psychological, social, vocational and economic usefulness. This will be done using the appropriate medical advice to assist my rehabilitation which should have been properly undertaken already had the WorkCover legislation been implemented".
My solicitors advised an appointment for the Workers Compensation claim to see a Psychiatrist on the 6th January 1996 had been made.
In his report the psychiatrist recommends that:
"it would be advisable from the psychological aspect if your client can be granted a final settlement of his claim as this would certainly permit him to follow his current planned program of rehabilitation". (Click to view psychiatric report)
Neither this advice nor terms of settlement were accepted in the Workers Compensation Court on 12th March 1996. My solicitors could not agree on the terms specified by the workers compensation insurer i.e. full amount of all workers compensation monies to be repaid from any third party settlement even if the third party settlement was for a lesser amount.
This I believe was probably the point in the proceedings when the solicitors actions spoke loudest to me. By their inability to accept these terms of settlement they were effectively saying either they didn't trust me nor the medical assessments gained through treatment or they doubted their own competency and ability to gain a just third party award. In this they were pre-empting my decision to run a third party claim, which I had advised I would not do.
Now being forced into court, my case was given a hearing date, Monday 8th July 1996 which was then stood over until 28th August 1996.
I informed my solicitor of the direction the medical assessments were now taking and investigations by HealthQuest and a neurologist were being undertaken for the NSW Police. The results of these investigations would undoubtedly directly affect the rest of my life the way the injury had. I asked what the likelihood was of gaining an adjournment so she could gain the relevant information and prepare the case properly.
In her written response on 22nd August 1996 I was informed "if the report is not received there is a good chance that we will have to make an application for adjournment of the case".
On 28th August 1996 we met with the solicitors at their office prior to proceeding to the court. On requesting her to seek an adjournment, as the medical report that I had paid for from the Neurologist had not been delivered, I was informed "this has gone on too long already, we are going ahead today". The relevant information relating to the specialists investigations were now in her mind irrelevant and for some reason a time factor now took precedence over all else.
We like most people had a belief that justice could be achieved through the courts and in some ways looked forward to this. Now we were beginning to get a uneasy feeling for we understood the judge can only make his decisions on the information presented, which we know has been distorted and the case was ill prepared by my legal representatives to be taken into court.
There were many issues that came through the events on that day that I feel must be raised as I query the competent jurisdiction that I have been quoted of this court. As a copyright covers the court transcript I cannot quote from the photocopy sent to me by the solicitors. I can only refer to the information contained therein. Matter No 307/95, Workers Compensation Court of NSW.
I have already advised how I came to work for the NSW Police, yet from the court transcript the judge got this somewhat distorted version of the events. I will never understand how you can terminate your employment with one employer and six months later gain employment with a totally different organisation and have it called a transfer. The judge got it wrong as his impression from the transcript describes:
I was employed by the DMT/RTA since 1982 was then transferred as a driving instructor to the NSW Police in 1989 where I was employed at the Police Driver Training at Goulburn. I live on the Central Coast and drove weekly to Goulburn and return.
Obviously he missed the fact that I had gained my desired employment with the NSW Police and my family's intent to relocate to Goulburn.
He has by his comments assessed I am disgruntled working 300 kms away from home and taking advantage of my accident so as not to work in Goulburn. He confirms this in his closing comments in short saying 'I was making the most of my injuries and refusing to help myself'.
Add to this somewhat distorted view, another very relevant account that the judge specifies in his summary. He was not tendered by either counsel, information that denial of liability happened on 7th December 1992.
All that the NSW Police and their insurer did over the next 12 months in restricting access to proper treatment and rehabilitation, could not be assessed as according to the judge this didn't happen, as he states wrongly I received compensation up until the 7th December 1993.
It's curious how these minor discrepancies all benefit the respondent and their insurer.
The next thing the judge goes into is the medical/legal reports with a number of pages stating what he said, they said, I said. He basically admits he can't believe any of what has been presented to him, nor can he accept my word as he sees what has been said as 'novel' as he has never heard a back injury described in this way before. (Now does that mean seeing as though the judge hasn't heard what could be multiple injuries described in this way, that what I was advising to be any less truthful, it appears that according to him it does)?
Hidden on page 11 of the transcript however, is an observation on his part that notes any specialist medical information tendered on my behalf is at least 18 months old.
Here I was beginning to think I was expecting a lot of my counsel who portrayed themselves as specialist compensation lawyers working in my best interests, who advised a policy of no win no pay.
Whilst being questioned by counsel, I related how I had been given a Police directive to return to work on 13th June 1995. The counsel for the respondent objected and the judge upheld his objection and struck this truth from the record as he stated "this information was detrimental to my employer the NSW Police". The next question put to me related to the same time, again I answered truthfully and the judge struck it from the record and questioned me for repeating my truthful answer.
My counsel never asked the question again, knowing there could only be one truthful answer that had already been struck from the record twice.
The judge had not allowed the truth in his court which I had been compelled to give, when I swore an oath to God on the Bible. As a Christian whose ideals had shown through my employment and the way I live, I was beginning to resent the farce that this court case had become.
Prior to the hearing date all records relating to the nursery, including personal bank accounts had been assessed under subpoena, on two occasions, as being irrelevant to the case. Even though the judge had this information he only reminded counsel for the respondent after he and they had laboured over this issue.
The judge had allowed himself to become personally involved in badgering on this particular issue when he asked if I was still working in the nursery on the 13th July 1994. My answer "yes". Then as I thought I added, "we would have been" advising the court that we, my family, my wife, daughter and myself would have been.
An entire family not just one person was being effected by the events culminating on this day. Before the judge could understand the word yes, he then rephrased the question five times and another five times I answered yes. What part of this three-letter word, "YES" escaped his understanding or did he object to being reminded of the human aspect preferably forgotten in workers compensation?
The judge also became embroiled in a debate over what I, having come from a trade, would refer to as work boots. He believed my footwear, as worn in court, a new pair of elastic sided dress boots similar to those issued by the NSW Police to be work boots. I had always referred to these, as shoes distinguishing them from my work boots, the type normally worn by members of the trades, which are often steel-capped which I had not worn since prior to my accident.
He used his differing opinion, having probably never worn a work boot, to in his summation state that I was being less than honest. The real issue of honesty at this time wasn't me over my footwear but counsel for the respondent twisting the truth stating that I was on the job in my nursery on this day, simply because I was at home.
I advised the court during questioning that I could probably answer questions more accurately, if I referred to notes I had from the time in question. Having been to so many medical/legal appointments I couldn't remember which one was which or exactly what I had said in each specific instance. Being confused I stated I had not been to a psychiatrist although as stated in this document I had seen a psychiatrist a year earlier for the proposed workers compensation settlement in 1996. A document paid for specifically for this purpose that my counsel failed to tender to the court.
So let's consider the relevance of that date, plucked out of the air in court, 13th July 1994 as mentioned earlier. As advised by the judge, forget the exact date of the 13th, but rather July 1994. Between doctors, solicitors, HealthQuest appointments and negotiations with work, I continued trying to maintain our home, sell nursery stock previously propagated and deal with all the daily events that my situation seemed to dictate as two insurers had reason to protect their own interests.
In February 1994 one of these insurers was advising what they could do to assist me at my home address, whilst a short time later the other undertakes surveillance at the same property. I think I would probably have to be forgiven for believing I was being set up.
Two people supposedly nurserymen whose hands advise they had never done an honest hard-days work in their lives, were found trespassing at the front of our property adjacent to the plant grow on area. On approaching them, they introduced themselves as nurserymen wanting to buy plants. I told them we were registered as a wholesale nursery I couldn't sell to anyone off the streets.
They then said they were passing and had seen the nursery from the highway. Our home and what little we had of the nursery could not be seen from either the expressway or highway unless you were on top of an extended crane. As they produced no business card or any other proof to verify their claims, not believing their bullshit story, I decided to play their game and followed my mother's advice 'tell the truth and shame the devil'.
We and the neighbours were getting tired of insurance people watching our home from dangerously parked vehicles, on a blind bend in a narrow unsealed road obstructing and forcing traffic onto the wrong side of the street, which had already been the scene of one head on accident.
They now believed they could just wonder onto our premises for all matter of lies invading our privacy. Over the next three-quarters of an hour I gave them a guided tour.
They looked at the plants out the front of our property in the area specifically chosen during my time at the Newcastle Rehabilitation Centre, so that they the insurers could see exactly how, when and what I was doing, which was only complying with my responsibilities under the WorkCover legislation.
I took them down to see what was left of the tube nursery which consisted of one erected propagation igloo at the back of the property and let them see the uncontrolled mess of overgrown tubes that would have been potted had I been medically able to run a nursery. They saw the frame for the other new igloo lying on the ground showing how seriously curtailed the nursery and our plans had become since my accident.
As they seemed very interested in how, Sleepy Hollow Nursery had come into existence, they were advised of this, my involvement with a nursery in Goulburn and my full time employment. They could see the time, effort and expenditure we had invested in Sleepy Hollow Nursery was now a waste, as we would probably never get our money back as there was nothing more than I was currently doing to change what was happening.
They commented and sought information on cars, which now remained unregistered or sacrificed, as I needed to borrow parts from one to keep at least one roadworthy and registered.
They commented on the van I had bought for the business, that now remained unregistered, rotting outside, along with my boat that hadn't been used since before the accident. They wanted to know if I had been able to help any mates with work on their cars and weren't interested in what I hadn't been able to do, but only interested in what I had done or what I was trying to do.
At this time, these people got close enough to think I could possibly have been wearing, what looked as though it might resemble or may have been at some stage, police issue clothing whilst recuperating at home.
Multiple people had found reason to enter our property as their car had broken down, had a flat tyre, run out of petrol, boiled or you name it, it happened. With the inevitable questions, unrelated to what had happened to their vehicle, I didn't hold back and I told them everything they wanted to know.
A person from Canberra claimed he had stopped outside our house on his way home and saw camphor laurel trees growing on our property. Without having any prior contact with us, he was able to ring from his home in Canberra, advising he was a wood turner and wanted some of our timber for his hobby. We took his name and phone number as the trees were overbearing our house and had to be felled.
At a later stage when my mother assisted us with the finances, the trees were felled for safety reasons. I then contacted him and advise he could have all he wanted. As he arrived on the second occasion, he was having car trouble and asked if I knew anything about mechanics and whether I was able to help him fix the problem. I did all I could to assist him, as I would do for anyone, but was unable to help in a physical capacity as I was now reliant on another to help keep my own vehicle running.
My contact with these people and the information I openly gave them seemed to be the basis that allowed Counsel for the respondent (NSW Police), to twist, distort and misrepresent events creating doubt in the mind of the judge as to my integrity.
I was also questioned in court about having used specific phrases from conversations held at home, with a person not introduced as an insurance investigator. Their ability also to say I was wearing a particular brand name dress boot at home dictates they were on our property as I wear two similar brands. They clearly used deception lies and false pretenses to gain access to our property for information in preparation of their case.
They were careful not to divulge their source of information or back up their claims, so left issues unresolved, leaving only questions and doubt in the judge's mind with questionable medical/legal documentation to assist their facade.
The judge indicated the claim would have been a total failure had it not been for the information in one doctor's report presented. The doctor estimated a permanent injury to my neck and loss of function at 15%, although the judge made his own assessment from a distance of twenty-foot or more and awarded five thousand and eighty four dollars for a 10% impairment of the neck.
I couldn't help but wonder when he asked me 'whether I was wearing a helmet at the time' of the accident whether he was aware that it is illegal and an offence to wear a helmet in a street driven car.
He showed he had no comprehension of the rules and regulations governing a person working in my position. He couldn't understand me not having just shown up at work to do my job, whilst the police service was taking disciplinary action against me. He was also unable to understand and criticised me for not seeking further employment whilst employed by the NSW Police and in a workers compensation situation. Prior to my accident, when I was fully fit, I understood the need and sought approval through my employer to take on a second job to supplement my income, the request was denied.
The judge showed his reluctance and inability to accept any of the medical/legal documents. Yet, these doctors were assured of payment for their assessments but were never questioned about the validity or accuracy of their reports.
I have been accused of exaggeration for financial gain. The account of the accident as stated in the court transcript, does not confirm this as it tells this story from the judge's determination: A student lost control at 100kph, ran off the road and hit a tree. I a front seat passenger crawled from the vehicle.
Why did I crawl from the vehicle? Maybe I understated the severity of the accident and omitted to advise the force of the impact caused the vehicle to roll, coming to rest heavily on its roof.
My wife and daughter had accompanied me to court on the day. My daughter paying particular attention to the proceedings, having attended Wyong Police station on work experience. Having witnessed first hand almost every event since the day of the accident, had her first chance to see, how the workers compensation court and legal system really 'works' and how their distorted version of justice is dispensed.
Judgment was handed down on 3rd September 1996 with the judge's closing statement summing up what the respondent the NSW Police had achieved with the help of my solicitors. He declared that as I left work again on 28 August 1995 my allegation of any incapacity is not supported by any presented evidence so he could make no award after 12th June 1995.
On receiving this information from the courts I immediately advised my employer, the NSW Police. However before the ink had dried on the judgement, specialist testing that had been conducted on request from HealthQuest for the NSW Police, now diagnosed my incapacity from the motor vehicle accident whilst in their employ, serious enough to terminate my employment.
A letter from HealthQuest dated 18th September 1996 advised, "I wish to inform you that a certificate dated 18/9/96 for your retirement on medical grounds of chronic pain syndrome; motor nerve dysfunction of uncertain aetiology affecting primarily the right upper limb has been issued to your employer".
With this injury found, HealthQuest decline to make any recommendations of assistance towards the injured worker. They seemed to throw their hands up in the air, hoping no one would realise they had stuffed up and specified the need for medical retirement.
When I rang to speak to my solicitor in relation to the judge's decision, I requested she appeal the decision and quoted my reasons for this i.e. termination of my employment. I was advised not to keep dumping my shit on her as my claim ended the day I went back to work, any work injury after that date became a new claim.
The case still going on in October 1996 and me not being paid as they had not prepared the case properly, proven when the judge stated in his closing comments they had produced no evidence after 13th June 1995 so he could make no decision after this date.
Her incompetence was to have ramifications in a third party claim, that prove beyond any doubt they lost the case, were not working in my best interests and continued their incompetence by denying my request to appeal the judges decision.
Being unable to get any sense out of her after numerous phone calls, on 30th October 1996 I faxed a copy of my termination from the NSW Police and the HealthQuest Medical Certificate to her. She remained uninterested and kept trying to persuade me to sign a third party contract with their firm, which I would not do, as I was far from happy with their mishandling of the workers compensation case.
On 27th February 1997 I received a letter from these solicitors stating:
"I am very sorry and disappointed that you do not feel that all efforts are being made to recover your compensation and act generally in your best interests".
Then on the 6th March 1997 they advised the insurer had forwarded a cheque for compensation from the 7th December 1993 not from the date of denial 7th December 1992. With the implications of this mistake, the respondent's solicitors held firm and would not agree the judge had made a mistake, necessitating the need for an appeal.
On the 10th March 1997 my proceeds from the cheque forwarded by the insurers to my solicitors, were sent to me as part payment of settlement monies.
On the 4th April 1997 they forwarded a contract so they could run a third party case which I would not sign or return for obvious reasons and I was speaking with other solicitors as to my options.
On the 2nd May 1997 I was forwarded a letter from the solicitors advising the matter was listed for the 22nd May 1997 for the judge to amend the award and unless I contacted them they would assume I no longer needed their assistance. With their advice that they would act in my best interests, I gave them this chance to redeem themselves as they had all the documentation relating to my employment being terminated and the reasons.
I had advised the police all the way through what had been happening through the courts. The police, knowing how the lack of relevant medical information had affected my employment and the judge's decision, now with their proof of how the system was being rorted, made no effort to ensure the specialist medical information they gained and used to terminate my employment, was presented in court.
The style of justice we can all look forward to from the NSW Police, can be accurately assessed by their claims that they are bound by both the HealthQuest and the Workers Compensation Court decisions. This gives them the right to terminate my employment for injuries sustained whilst in their employ. Injuries the workers compensation court can't assess exist, so no compensation can be paid. Although the police feel there may be some inconsistency, there is nothing they can do to serve me, justice or the state.
The judge heard the matter on 22nd May 1997 and rectified the error relating to this one date only, which then allowed his flawed judgement of the 3rd September 1996 to take effect and be finalised.
Throughout this six months, not one of the concerned parties did anything to assure the judge had access to the missing relevant medical information that they had supposedly just gained. Information that is consistent but only part of the assessments made by the Newcastle rehabilitation team prior to July 1993. Information that had been denied in all medical/legals both prior and since.
On the 26th May 1997 the solicitors forwarded a letter advising the case had been finalised. They requested my decision allowing them to run a third party case. Again on the 27th May 1997 they wrote requested my instructions and requiring me to sign and return their fee agreement.
Then on 29th July 1997 the monies awarded through the adjustment of the aforementioned dates was forwarded to me.
HealthQuest required me to sign a waiver form negating any claim against them, for their actions that had led to their advice regarding my injury and termination of my employment. I returned the waiver signed, although unhappy with the outcome, content they had at last noticed the injury they had been required to assess for the first time back in 1993.
Now that HealthQuest had denied the police allegations and advised that my injury could not have been self-inflicted, I hoped something could be done that would assist gainful employment. But now with termination of employment being advised the police requested I sign a waiver for them also. This I would not do, as I believed my only chance of employment lay in their responsibility to me. They sought a photocopy of the HealthQuest waiver form I had signed and claimed it as their own indicating I could take no further action as they now had a signed waiver form.
They terminated my employment in their usual caring manner, knowing they had one less employee to consider when they downgraded PDT later that year, a demise that had only been bought about as they had been too blind to see it internally haemorrhaging for so long.
I had every intention to appeal my employment termination. When reviewing all that had happened I arrived at the decision that to win an appeal at this time would probably be useless, even if I did win, as I had already found out I wouldn't have a job and the medical situation remained unresolved.
The health insurance commission unable to agree with the workers compensation court decision that claimed no injury after 13th June 1995, reclaimed all monies they believed was owing to them from this accident through to the date when the money was paid over by the workers compensation insurer in 1997.
With the delay and the time it was taking for the workers compensation money to come through, I applied for my small Superannuation Fund entitlements and was paid out, Total Permanent Incapacity (TPI).
Ultimately the need arose to ask the solicitor at Wyong to run a Third Party Claim that he wanted to run years earlier. He like all the others approached would not appeal the workers compensation decision stating this could not be done. I had been in touch with the Attorney Generals Department who advised the workers compensation claim should have been appealed within a specified period, however this could still be done if appealed as the solicitor would know, out of time.
The solicitor content in the knowledge that he had a third party claim to run advised in a letter dated the 14th November 1997 of problems running the claim because the judge in the workers compensation court had not been sympathetic towards me.
At a third party pre-court conference on 24th September 1998 I was advised by my solicitor of an anomaly that exists through the decision handed down in the Workers Compensation Court, apparently disallowing any payments after 13th June 1995. Regardless of the truth, my rights or their obligations, this insurer closed their mind to all else and used the anomaly to their own benefit paying no compensation after my last day at work for injuries sustained that had subsequently cost me my livelihood.
I had been trapped into accepting a settlement by incompetence or fraud. Knowing my life was hanging in the balance, I complained "this is wrong". My solicitor then advised me to walk away, he worked out approximately when the disqualification period from obtaining any Government assistance expired and said "apply for a pension, get on with your life".
Over the preceding 10 months he spent approximately $30,000.00 assisted by sending me to in excess of 14 medical/legal and associated appointments, to help feed the vultures encircling the rotting carcass of my claim. Money immorally spent under the pretense of assisting me gain a just settlement that was only bleeding dry my minimal award prior to settlement. An extra $30,000.00 taken away from my life, through him on a predetermined outcome dictated by the workers compensation court on 3rd September 1996 that he could have but would not appeal.
2nd November 1998 cheques in settlement of the Third Party Claim totalling $155,939.81 were paid from my solicitors after their costs, workers compensation payback and Health Insurance Commission (HIC) monies had been deducted.
As I had already applied for but not received any benefits through Centrelink, nil repayments had to be made however, given the small amount received and the length of time already without an income, any disqualification period from receiving benefits had faded into past tense.
But then benefits were declined by Centrelink as the information received from my last employer the NSW Police did not confirm my eligibility for a Disability Support Pension. The medical/psychological assessments made by Centrelink echoed the preferred ignorance that had been like a plague since the day of my accident. At this time I didn't appeal the decision, as I felt beaten by the whole corrupt system.