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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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I have a situation where a victorian car accident injury has

Customer Question

I have a situation where a victorian car accident injury has caused me trouble on a return to work program (I could not work, received treatment and thought I could work, but had too much trouble and ceased working). Aside from the evidence of me reducing hours from full time to casual, I repeatedly told both my case worker and my return to work assignee verbally and in emails that I was experiencing pain that was affecting my ability to work. I did this over a 6 month period.
I was told by many of my friends and colleagues that if I'm having trouble with anything at work, to tell everyone who needs to know at every opportunity so as to record if not a diary, at least a log of my problems.
I'm wondering if there is a law or precedent that says that this information is submissible on its own as clear evidence of an ongoing problem.
As background, the TAC is requiring in its dispute of total incapacity, documents from my employer regarding my work capacity which 9 months after the fact are proving very difficult to attain. I would have thought this 6 month record of my issues - recorded in detail by my return to work representative - would be enough evidence?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

So is this a workers compensation matter for travel?

Customer: replied 1 year ago.
This is at its core a Victorian Transport Accident Commission issue. The TAC claims that they need something other than my word that I was having trouble at work due to the pain from an injury caused by a car accident 2 years previously. I remember something back in Law101 at uni where an ongoing record of a problem can be considered evidence of its own standing, even if that record is by the person experiencing the problem. I think that particular piece of legislation was referring to diaries recording inappropriate / illegal behaviour at a workplace - I'd like to read that piece of law again to see if it can be applied to my case.
Expert:  Leon replied 1 year ago.

Good Afternoon

Do you have medical evidence about your injuries and how they impair your ability to do the work?

You will need a report from your employer and also from your doctor.

Customer: replied 1 year ago.
My problem is that the TAC has dragged this issue out to the point where the person that hired me, his boss and my subsequent supervisor are all no longer with the company, and this is making it very difficult to get a statement (it's been 9 months). I have as medical evidence:
1. GP's certificates from the date I stopped working saying that I cannot work at all;
2. Three specialists that I saw - 2 of them independent TAC assessors - saying that I am completely incapacitated from pain caused by my MVA injury.I believe the TAC is now asking for more evidence in an attempt to make me give up on this dispute. I wish to ascertain if the above evidence, plus my 6 months of complaints while at work, is evidence enough without me having to physically visit my old bosses at their new workplaces to get statements (they are ignoring emails). What is your opinion?
Customer: replied 1 year ago.
Sorry - to clarify - The TAC claims that they must have something from my employer because my continued statements over a 6 month period saying I had trouble is not enough evidence. I wanted to ascertain if this record of my troubles over time would be admissable in court as its own standalone evidence.
Expert:  Leon replied 1 year ago.

Good Afternoon

If there are medical reports that back you up they cannot refuse to pay.

There should be an up to date report from the doctor and also a report form your employer that you are not able to do the work.

The medical report should state that it is because of the accident.

Customer: replied 1 year ago.
What if I can't get a statement from my employer? This is my problem.
Expert:  Leon replied 1 year ago.

Your employer is not prepared to say that there are issues with your work because of the accident?

have you taken sick leave because of this?

Customer: replied 1 year ago.
I ceased work in July 2015, and the TAC claims that I have a capacity to work 2 days per week when all of the evidence that I have - shy of a statement from my employer - says that I can't work at all. I'm having trouble contacting any of my supervisors as they no longer work for the company either.
Expert:  Leon replied 1 year ago.

You have no other choice but to take the matter to court.

If their doctors say the same as your doctors then they have no leg to stand on.

Contact a no win no fee solicitor and show then the reports and have them deal with the insurer.

This is your only option.

I hope this makes sense and is of assistance.

Customer: replied 1 year ago.
I'm not satisfied with the answer. I gave this lawyer background information and he has told me what I already know. I have a no-win-no-fee lawyer already, and still my question of a diary being admissible as evidence in court has not been answered. I want a refund.