And you know what… it’s wrong.  If you have an accepted workers compensation claim then the Case Manager is legally obliged to pay all reasonable medical expenses that you incur as a result of your work related injury.

If your Case Manager says they won’t pay for treatment you can challenge that decision and may be able to force the Case Manager to pay the account, or reimburse you for the cost if you have already paid the doctor or physiotherapist etc.

If your doctor wants pre-approval for the costs of surgery or other major treatment (because they won’t proceed without this treatment until they have approval), you can ask your Case Manager to provide their approval, or you can ask for a Rehabilitation Programme that approves the cost of the surgery or treatment to be incurred.  If your Case Manager does not implement a Rehabilitation Programme then there are procedural steps that can be taken to force them to do so and Andersons can help you with that.

Injured workers are entitled to receive reasonable medical treatment and the insurer is obliged to pay for that treatment.  If your medical expenses are not being paid by your Case Manager contact the writer of this blog, Marion Williams at Andersons Solicitors on 8238 6642.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.

At that point (or in fact just prior to that point) it is strongly urged and encouraged that injured workers seek legal advice as to how they may be able to have their income maintenance continued beyond the 2.5 year mark.

The only way that this can occur at that time is if a worker lodges a form called a “Section 35C Application for Payments to Continue” with their WorkCover insurer (Employers Mutual Limited or an exempt employer). The insurer then needs to determine that the worker’s entitlement to weekly payments does not cease and this is met if:

“the Corporation is satisfied that the worker is in employment and that because of the compensable disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker’s current weekly earnings” – Section 35C (2) of the Workers Rehabilitation and Compensation Act 1986 (SA).

Employers Mutual Limited and exempt employers do not readily tell injured workers to lodge this Application for Payments to Continue form.  By lodging this form this is the only way an injured worker’s income maintenance payments can continue to be topped up beyond the 2.5 year mark. The worker has to be in some employment to be able to lodge this form. It is then up to the insurer to determine whether what they are doing in their work is working to their maximum capacity or not.

There is not much case law as yet in the Workers Compensation Tribunal as to how the Section 35C Applications will be treated at law however, at Andersons we anticipate that many arguments will be able to be made to hopefully achieve top up income maintenance for injured workers beyond the 2.5 year point.  We anticipate that these arguments could incorporate a whole range of issues namely hours worked, earnings and these provisions overlap with employment and industrial relations issues such as conditions of employment.

Under the legislation once the Section 35C Application form is lodged the insurer must, within 90 days of receiving it, make or refuse to make a determination and advise the worker in writing of its decision.

The insurer cannot refuse to make a determination unless they have referred the matter to the Medical Panel for decision.  In other words, they can either accept that the worker is working to his or her maximum capacity within the 90 days and issue a determination or if at the 90 days they cannot make the decision they must refer the question to the Medical Panel.

If  the insurer makes a determination that the worker does satisfy the test outlined above under Section 35C (2) then the worker is entitled to weekly payments top up of 80% of the difference between what they are earning in employment and their notional weekly earnings.

Andersons has a very strong and experienced team of solicitors in WorkCover.  We urge any injured worker who is in employment and coming up to 2.5 years from the date of their injury to contact Andersons for assistance with this type of application.  Or just for a quick chat initially, why not contact the writer of today’s blog, Andersons Solicitors Associate, Alana Moore.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.

There can be far reaching consequences for businesses which are affected and do not take steps to understand these changes, particularly if you do business with someone who becomes insolvent.

The Basic Guide

On Monday 30 January 2012, the PPS Register replaced most other security registers in Australia, including but not limited to the ASIC Company Charge Register and the South Australian Register of Encumbered Vehicles.

It also enables registration of security interests, generally speaking, where you take security over someone else’s asset excluding real estate that secured parties have not previously been able to register.

Security interests capable of registration and numerous and could include, amongst other things:

• Fixed and floating charges over companies – this includes intercompany charges for asset protection purposes;
• Mortgages over shares;
• Leasing/licensing goods – this includes intangible goods like intellectual property; and
• Selling goods under retention of title or on consignment.

A Practical Summary

All businesses should make sure they understand the following:

• If you hire goods, sell goods or otherwise secure or encumber other party’s goods (or your own goods are in someone else’s possession) and you fail to register your interest on the PPS Register or register your interest too late, you can lose those goods to another secured party who has registered their interest before you, even if you own legal title to the goods.
• For all security interests that are dated before 30 January 2012, but not currently registered, you will have two years to register them before you lose priority.

Andersons Solicitors can advise whether you need to register your interest on the PPS Register in order to obtain or retain security in priority of others and we will assist you in the process of registration if your require.  For more information or to get some help with this, why not have a chat with today’s blog writer, Andersons Partner Felix Hoelscher.

Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation.

A family, for example, can lurch from financial security to financial stress very quickly if the sole breadwinner is unable to work for any period of time following injuries sustained in an accident.

Is there anything that can be done for those injured in road accidents to ease what is often a short term but significant financial difficulty?

The compulsory third party insurer, Allianz, is open to an approach for what is called an interim payment.  That is, a payment usually of a smallish amount to ease a person’s financial hardship while the totality of a claim is still being assessed or while they are unable to work. We have had several clients who have received a rolling series of interim payments which have covered them until they are able to resume work.

Allianz, in our view, does take an unnecessarily harsh view of applications for interim payments.  They do however, require evidence of the financial hardship as a pre-requisite.  It’s similar to the application being means tested and that you need to establish that you do not have significant funds that you can fall back on and in addition, you are being pressed to make significant regular outgoings such as mortgage payments.

We know many of our clients have found this method of access to financial assistance most welcoming.  We recommend it to many clients, particularly as it can remove a potentially difficult and stressful issue.

For more information in relation to the obtaining of an interim payment after your motor vehicle or bike accident get in touch with our writer today, Andersons Partner, Dion McCaffrie.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.

Photo by sghosh30 and sourced from Flickr

Will unfaithfulness be taken into account in a family law property settlement?

Scenario:

Fred and Wilma recently separated after Wilma discovered Fred had been unfaithful on several occasions.

Fred admitted his unfaithfulness to Wilma and further admitted that he had been unfaithful for two years out of their ten year marriage.

Wilma is furious and feels that Fred has made a fool of her. Wilma tells Fred she will “take him for all he is worth” due to his infidelity.

Can Wilma get more from the division of assets because of Fred’s unfaithfulness?

Answer:

With rare exceptions, conduct by a party which leads to the breakdown of a marriage is irrelevant to the division of property under Section 79 of the Family Law Act 1975. Section 79 operates under a “no fault” system.  This means that the Courts do not consider which party caused the breakdown of the marriage.

The Family Law Act 1975 and the Australian Family Law Court system does not set out to punish a party on the basis that they were unfaithful during the relationship. While socially this is considered unacceptable, it is not relevant to the division of assets in a property settlement and therefore does not mean the unfaithful party will receive less due to their unsavoury conduct.

It’s one thing to be angry at your partner if they’ve been unfaithful but unfortunately being unfaithful is not against the law. It’s another thing to ensure you get what you’re entitled to in a division of assets or property. At Andersons, our dedicated team of Family Law solicitors is on hand to assist you with your Family Law property settlement.  Contact any one of our offices by visiting our website at “Contact Us” to arrange an initial free consultation.

Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal Family Law legislation.

The Inheritance (Family Provision) Act

Once you lodge a claim, you become an “applicant” and basically you’re suggesting that you are left without adequate provisions for your proper maintenance, education or advancement in life.  The Court may then exercise its discretion to vary the Will to make such provision for the maintenance, education etc.

The Court may refuse to make an order where the applicant’s character or conduct does not entitle them to the benefit of this Act or for any other reason the Court thinks sufficient.  This disentitling conduct however, is rarely established.

An applicant has six months from the date of a grant in South Australia of Probate or Letters of Administration to commence their claim in Court.  The Court may extend this time but an application for an extension of time must be made before the final distribution of the estate’s assets.  It’s important to note that any distribution of the estate made before the application for extension of time will not be changed.

An executor or administrator has certain protection in relation to distributions unless they had notice of a potential claim.  A notice of a claim must be in writing, signed by the applicant or a solicitor and will prevent an executor or administrator from making any distributions.  This notice lapses after three months and if a Court claim has not yet commenced the executor or administrator may then distribute the assets of the estate without punishment.

You should speak to a solicitor if you wish to investigate making a claim or issuing such a notice as there are many potential pitfalls.

Contrary to common misconception, a claim cannot be defeated simply because some amount was provided for in the Will.  Often people state a belief that by providing an estranged son or daughter with say $1,000 in the Will, then that will prevent that child from bringing a claim.  This is not correct.

There are no hard fast rules as to what a Court may or may not do in relation to these sorts of claims.  The Court places itself in the position of the deceased person and considers what he or she ought to have done in all the circumstances of the case, treating him or her as a wise and just, rather than a fond and foolish, spouse or parent.  A Court will often consider the relationships involved and special circumstances of any applicants, the means of the applicant, size of the estate and the relative importance of any competing claims.  For example, elderly spouse versus working aged children.

Costs of the estate and the applicant are normally covered by the assets of the estate.  This in itself will often apply pressure to work out settlement as the cost of prosecuting and defending these sorts of matters in Court can be significant and use a lot of funds out of the estate.

As we’ve said, there can be many pitfalls so if you’re considering contesting a Will, you should definitely seek professional legal advice.  A great starting point would be with the writer of today’s blog, our Senior Associate in Estate Planning, Greg Welden.  He’s more than happy to have a chat.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.

You’re aware that people in your car and the other vehicle are hurt. How seriously, you don’t know.

You were the driver of one of the vehicles and naturally you’re concerned about the safety of your passengers and all those involved. You should first contact police an ambulance.

Then you are approached by police about allegations of the way you were driving. The police are alleging that you were speeding prior to the accident.  You should be aware that anything that you do say to police can be used against you.  So it’s important that you are aware of your rights when speaking to police. For more info on this, see our blog on “speaking with police”.

The police are looking at charges ranging from driving without due care, driving in a manner dangerous to the public to causing death or injury by dangerous driving.

If you are charged and arrested your mind immediately races and panic sets in.  The first question that comes to mind is “will I go to jail?”

The most important point to remember is that if you have been charged with one of the above offences, in criminal law, you are innocent until proven guilty. The burden of proof to find you guilty must be beyond reasonable doubt.  That is the Police and Prosecution must prove beyond all reasonable doubt that all the objective elements of the offence have been satisfied. This is an extremely high burden.

Driving offences are treated seriously by the Courts.

How Serious?

The maximum penalties available for the more serious driving matters such as cause death by dangerous driving is 15 years imprisonment and a mandatory loss of licence of minimum 10 years.

But if the charges allege that your driving was sufficiently severe there may be an ”aggravating” feature added to the charge, which increases the maximum penalty to life imprisonment.

What constitutes an aggravating feature?

• Drag Racing
• Excessively high speeds
• Driving to escape police pursuit
• Street racing
• Driving whilst disqualified
• Driving with a concentration of .08 grams or above of alcohol
• Prolonged and persistent deliberate court record of very bad driving

So will I go to jail?

Unfortunately, there is no clear cut definition as to when a person goes to jail. Each case is determined on its merits and no two cases are the same. However, the more serious the charges are the greater likelihood of receiving a term of imprisonment. It should be noted that we are seeing more and more people who have been charged with cause death by dangerous driving and cause injury by dangerous driving, the Courts are imposing immediate terms of imprisonment.

If you are unfortunate enough to be charged with serious driving offences causing harm or death of another person, the repercussions can be grave.

At Andersons we have a dedicated team of professionals with experience in serious criminal motor vehicle matters, ranging from driving without due care right up to causing death by dangerous driving. We understand that the criminal justice system can be daunting and intimidating to those on the outside, which is why our team will assist you through all aspects of your matter, from dealing and liaising with Prosecution, working through the Court process and everything in between.

Most importantly, if you’ve been charged with serious driving offences, get experienced legal advice.  Visit our Criminal Department for more information on the Andersons Criminal & Police matters team or get in touch with the writers of this blog, Jason Coluccio and Maddalena Romano for a chat or to seek advice and assistance.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.

Scenario:

Jack and Jill have been married for eight years. Throughout the entirety of the marriage Jack has gone to the local pub at least three times per week and played the pokies for hours at a time. Jill is also aware that Jack has a TAB account and regularly placed bets on the horses and other sporting events.

Jack and Jill have been separated for six months. They have each retained a lawyer and are about to begin the process of property settlement.

Jill is convinced that Jack’s gambling has caused loss to the assets of their marriage.

Will Jack’s gambling be taken into account in the property settlement?

Answer:

It is important that you instruct your lawyer in relation to any concerns you may have regarding gambling during the marriage.

Any loss caused by gambling may be considered economic misconduct and therefore categorised as a “negative contribution” by the Court. A negative contribution is where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets.  If a negative contribution can be proved the party who has caused the loss to the assets may have to bear such loss out of their share of the property.

Generally, there will need to be evidence of the conduct which has caused loss to the assets of the marriage. For example if gambling has caused the loss, receipts or bank statements of gambling purchases would be useful to persuade the Court of such transactions.

If your marriage or relationship has ended and you need to sort out the property settlement, it’s important to seek experience Family Law advice. At Andersons we have a dedicated team of solicitors working in our Family Law practice. You can contact them through any one of our offices and arrange an initial free consultation.

Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal Family Law legislation.

The Independent Children’s Lawyer is not the child’s legal representative which means that they do not act on the child’s instructions or do what the child tells them to do.  What the Independent Children’s Lawyer must do is to find out the views of the child and make sure those views are put before the Court.  They also have to form their own view, an independent view, based on not only the views of the child but all the other information available as to what they believe is in the best interests of the child.

The ICL must, in Court, maintain the child’s best interests. This means the ICL may pursue an outcome which is different to what the child said they want.

Independent Children’s Lawyers are impartial.  This means that they are not on the side of either of the parents; they are acting in the interests of the child.  In some cases this may mean that the Independent Children’s Lawyer will prefer the child lives with one parent over the other but it doesn’t mean that they are “on that parent’s side”.

The Independent Children’s Lawyer may recommend certain Orders be put in place to protect the child.  For example they may require one or both parents to undergo a random drug test.  They may also subpoena material from the Police, Families SA or any other relevant body to bring that evidence before the Court.

The Independent Children’s Lawyer will also send an account for half of their fees to each of the parents.  This is calculated on the Legal Aid scale and in the first instance is usually about $1,200.00 per party.  It can increase depending on the complexity of the matter and how long it proceeds.  The parties can apply for Legal Aid in respect of the Independent Children’s Lawyer’s fees, but if it is not granted they will have to meet the costs.

For more information on all your rights, entitlements and obligations in relation to Family Law, contact today’s blog post writer, Andersons Senior Associate Ryan Thomas.

Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation.

At this time the Police should caution you. This is where the Police indicate to you that “you do not have to answer any questions. Any answer you may provide may be used against you.”

This is a very important caution and it is a question that you must carefully consider.

Quite often people find themselves facing criminal charges with the sole evidence being relied upon by the Police being the answers provided by you.

This is why the caution provided by Police is so important in the carriage of criminal justice. So much so, that the Police record the answers to the above questions.

But should you answer Police questions?

As a rule it is always pertinent to be polite and cordial with Police.  After all they are doing a very difficult job.

However, it is important to not be intimidated by the situation and think about what it is that the Police are saying to you.

You should always remember that if you are being questioned immediately following an event that results in injuries or damage, you may not feel 100%. You may wish to have someone else like a lawyer or family member present, all of which you are entitled to.

The Police are not allowed to intimidate you into answering any questions you do not wish to. In the normal course of events, if you do not wish to speak to Police, all that is required from you is that you decline to answer any questions until you have had a chance to speak to a lawyer.

The only questions that you are required to answer at law are your name, address, date of birth and it is an offence not to nominate a driver of a vehicle when asked by police.

No detriment can be held toward you for enforcing your right not to answer further questions.

At Andersons we have a dedicated team of professionals with experience in all criminal and Police matters. We understand that the criminal justice system can be daunting and intimidating which is why our team will assist you through all aspects of your matter from interviews with Police to dealing and liaising with Prosecution, and working through the Court process.

Visit our Criminal Department for more information on the Andersons Criminal & Police matters team or get in touch with the writers of this blog, Jason Coluccio and Maddalena Romano for a chat or to seek advice and assistance.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.