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Workcover, suitable duties and legally intoxicated on medication

We received an email from an injured worker, which we believed is well worth sharing with all as it raises important questions about liability when driving (or having an accident) when under the influence of narcotic, in others words, whilst being legally intoxicated and being forced to work (by the insurer, doctor, employer) and/or by being forced to drive a car to work if no alternative transport is possible.
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Judges unlikely to favour “wilful” injured workers: lawyers

A long-running workers’ comp dispute in South Australia has shown that courts are reluctant to characterise harmful lifestyle choices as “compensable sequels” to workplace injuries, a lawyer says. Also in this article, an injured ACT worker who struck his manager has had his claim rejected.

In the first case, fitter and turner Noel Seal injured his right shoulder and neck in the course of his employment with a business now owned by Transfield Services (Australia) Pty Ltd in October 2000, and made several unsuccessful attempts to return to work on modified duties over the next six years.

In August 2006 his employer determined that he was no longer entitled to weekly compensation payments because he was incapacitated for work due to drug and alcohol abuse.

Seal appealed to the Supreme Court, arguing that his substance abuse arose from the pain he experienced from his workplace injuries, but in a 2-1 decision a full bench found he had breached mutuality.

“The problems associated with his substance abuse were not caused by work; they resulted from personal lifestyle choices that he had made over many years,” Justice Thomas Gray said.

“He was, as a consequence, a danger to other workers. His substance abuse had rendered him unemployable.”

The worker last month sought special leave to appeal to the High Court. His application was rejected.

No fixed categories of mutuality

Kevin Gilchrist, a principal at law firm Gilchrist Connell, which represented Transfield, said in a report that the case “illustrates the reluctance of courts to permit personal lifestyle circumstances and choices to be treated and characterised as a compensable sequel arising from ‘self-medication'”.

“The more typical instances of breach of mutuality involve matters such as a supervening serious medical condition, relocation interstate, dishonesty, and also various conduct proscribed by s36 [of the South Australian Workers Rehabilitation and Compensation Act],” he said.

“The judgment of the full Supreme Court… emphasised that there are no fixed categories of mutuality, but rather that any conduct which is inconsistent with a worker being ready and willing to maximise his or her residual employability can amount to a breach of the obligation of mutuality.”

Gilchrist noted that a breach was unlikely to arise in the case of occasional substance abuse.

“It is the chronicity and limiting effect on employability which constituted the breach of the obligation of mutuality in this case,” he said.

[end]

So what do you think dear readers?   Look at the average severely injured Joe, prescribed powerful narcotics for terrible pain, and “joe” becomes addicted to the drugs, not only because the drugs are highly addictive in themselves but ‘joe’ may also be inclined to take more for his “nerves’ as in the stress of dealing with workcover, being bankrupt, the depression of being incapacitated, socially isolated etc. Or what if average Joe could not find adequate pain relief from doctors, which is the case with some severely injured – due to allergies, etc – what if Joe had a choice between living with chronic pain (which studies show can lead to suicide) OR self-medicating with alcohol or other substances? Whose liability is this?

Medication entitlements under work cover

What medication is covered by workcover

WorkCover will pay the reasonable costs of medication prescribed by a doctor to treat your work injury or illness.

WorkCover will also reimburse over-the-counter medications (eg, paracetamol for pain relief) and other non-medication items (eg, bandages for wounds) that have been recommended by a medical expert to help you recover from your work injury or illness. (Note, a medical expert is a doctor, dentist, psychologist, optician, physiotherapist, chiropractor, podiatrist, occupational therapist, speech pathologist or osteopath.)

Did you know?

Many pharmacies will allow you to “bulk bill” your medications – that is you won’t have to pay for them upfront as the pharmacy will directly bill the workcover insurance!

Stop paying for your medications (it all adds up quickly) and stop waiting for the reimbursement of medications you purchased (it often takes yonks to be reimbursed!)

What pharmacy items does WorkCover  not  pay for?

WorkCover does not pay for pharmacy items that:

  • your doctor did not prescribe  (in the case of prescription medicines)
  • your doctor  or  other medical expert (such as your physiotherapist) did not recommend (in the case of nonprescription items). This sadly means that you also need an approval to buy some bandaids!
  • you  take f or injuries/illnesses not related to your work injury/illness
  • those prescribed as part of a clinical trial.
  • WorkCover will also not pay for pharmacy items where proof of purchase and other relevant details are not supplied – hence you’re far better off having your pharmacist bill workcover directly for all medications!

If your case manager (who is NOT a medically trained person) is unsure whether an item you are claiming can be reimbursed, they will ask you or your practitioner for further information if you are lucky. Usually you will just get some nasty little letter saying that medication A is not appropriate for your condition and will not be paid for.

True example:

I had been diagnosed with severe CRPS (Chronic Regional Pain Syndrome) of a limb (in addition to a severe injury to that limb). My pain specialist (read: an anesthetist who is specialised in the management and treatment of pain) prescribed an antidepressant as part of the medication for my CRPS. Well this (very uneducated) case manager sent me several letters stating that antidepressant X was not appropriate and had nothing to do with pain control. Yeah right… Here we go again… Many antidepressants are used effectively for the purpose of pain management/control. I.e some nerve injuries respond very well to antidepressants, as does CRPS and certain types of arthritis.

If the case manager finds the items are for your work injury they will reimburse the cost (which often takes long) however if they are not for your work injury they will not reimburse the cost. Please note, if you do not agree with the decision you are entitled to challenge it.

Am I entitled to reimbursement of nonPBS (private prescription) medications?

Yes. Your doctor should be prescribing PBS medications when clinically appropriate for treating your injury, but some medications are not in the PBS schedule or are eligible for the PBS subsidy for certain conditions only. In this case your doctor will write a private patient prescription and WorkCover will reimburse you the full cost of your medicine.

If however, a medication is available on the PBS and does meet the indications listed in the PBS schedule, and your doctor has written a private prescription without apparent reason, your case manager SHOULD ask you to get a PBS prescription from your doctor if further doses of this medication are required – and not simply REF– USE to pay for that prescription.

True example:

My medical practitioner had been prescribing Endone (Morphine) for several months on a private prescription. After about 6 months, I suddenly was told by my frustrated pharmacist that “they” (workcover) sent him a letter (of which I of course never got a copy,nor my prescriber) stating that the Endone would no longer be paid for as it had to be prescribed on PBS. How am I supposed to know this? In any case I was left high and dry for it was Friday afternoon when I ran out of my Endone and needed an urgent refill… I was not allowed to get the precription filled and was sent home for -what became a terrible- long weekend without any morphine tablets. Thank you very much again for making me suffer even more ):

Can I substitute my prescribed medication for another brand?

Yes you can!

How am I reimbursed for pharmacy items?

If you pay for pharmacy items yourself you must submit a completed Pharmacy items reimbursement form (a receipt that you get from your pharmacist) as soon as possible to your case manager and attach itemised receipts.

You are required to sign this form to verify the pharmacy item is related to your work injury or illness. Your case manager can give you copies of the reimbursement form or you can download it from www.workcover.com.

Case managers can make allowances for workers seeking reimbursement for pharmacy items at the beginning of a claim without having  a completed Pharmacy items reimbursement form.

You must attach each receipt to the reimbursement form.  The receipt must list:

  • date and place of purchase
  • item(s)  name
  • quantity,  strength
  • cost.

WorkCover will accept handwritten receipts from the pharmacy if the pharmacy cannot provide you with a cash register receipt.

If details are missing from the receipt or the reimbursement form, your case manager may ask you for additional information before reimbursing you if you are lucky – usually they will just NOT reimburse you.

Note:

You do not need to submit a Pharmacy items reimbursement form for hospital-related items (as from the Hospital pharmacy). Simply send the hospital pharmacy’s statement they provide you to your case manager.

Do I have to pay for the pharmacy items up front?

As mentioned earlier many pharmacies will happily create an account for workers and directly invoice the case manager, which means you do not have to pay for the cost of the items upfront. In this case, you do not need to submit a Pharmacy item reimbursement form but you may still receive so-called “enquiries” (to put it gently) from your case manager if they are unsure an item is related to your work injury.

You are far better of to set up an account at your pharmacy, so you don’t have to pay for medication. It all adds up very quickly and,if you’ve been incapacitated for a while,you will soon realise how poor you are and counting pennies is the only way to survive.