Interestingly and following our post of yesterday, whereby an seriously injured worker was forced, by Xchanging and her employer to continue full time work without the support of medically, repeatedly requested and reasonable ergonomic aides, which eventually led to catastrophic exacerbation of her injury – we stumbled on a legal case in which The Administrative Appeals Tribunal (AAT) has recently (Feb 2012) found that an employer remained liable to pay workers compensation to an injured worker after she had resigned, because she had too much pain, after a workplace accident to cope with the return-to-work program drawn up for her.
Injured worker resigned but employer remained liable for workers compensation
The injured worker’s case – summary
See full case here: Skinn and Australian Postal Corporation  AATA 121 (28 February 2012)
On 15 May 2008, a female postal delivery officer was delivering mail via motorcycle, when the wheel of the bike slipped and the officer was thrown off. She fell on her left shoulder and hit the back of her head and immediately experienced neck pain, headache and pain in her shoulder. The officer however continued delivering mail to some 20 houses before going home.
After three weeks off work, the injured officer returned to work. She worked two hours a day until mid-August 2008 and then took a four week holiday. After her holiday she returned to work at four hours per day, however her neck pain persisted.Then she took four weeks of annual leave and, when she returned, worked four hours a day. Her neck pain
The employer sent the injured officer to an occupational physician in October 2008, and he stated that she was ‘fit to work on a full-time basis undertaking duties which limit the biomechanical demand on her neck and shoulder girdle’. He specified that restrictions would apply, such as only occasional lifting of 5 kg maximum weight, no work above eye level or below thigh height, no forceful pushing or pulling, regular postural variation, and no reaching upwards, outwards, forwards, backwards or across the body. A rehabilitation person then drafted a return-to-work plan, which was to start as of 5 November 2008.
At her next review, the injured worker told her treating doctor that she was unable to cope with the required working hours without aggravating her ongoing pain. She submitted her resignation on 20 November 2008.
During the next year or two (April 2009 – Jan 2010) the injured worker had several diagnostic tests such as scans as well as a nerve root injection for pain in the neck, however her pain levels did not decrease. The neurosurgeons she was referred to advised her that she needed surgery and she underwent surgery on 15 May 2011, but only after her employer (insurer) agreed to pay for the procedure. After her surgery her neck pain improved dramatically but her shoulder pain persisted and she needed to continue to take pain killers and, by now, also antidepressants.
Workcover claim substantiated
The injured worker had received workers compensation after her workplace injury and up until her resignation.
Given that she felt that her employer/insurer ought to still be liable for her weekly payments after her (forced) resignation, the injured worker sought a review- however the determination that the employer/insurer was not liable to pay compensation after 20 November 2008 was upheld on 5 August 2010.
The brave injured worker then applied to the Administrative Appeals Tribunal for another review and won!
The determination of this particular case turned on the application of s19(4) of the Safety, Rehabilitation and Compensation Act 1988. The two questions to be determined were:
- Did the return-to-work program constitute an offer of suitable employment according to s19(4)(b) of the Act?
- Was the officer’s failure to accept the offer of employment in the return-to-work program reasonable in all the circumstances, as required by s19(4)(f) of the Act?
The AA tribunal was satisfied that the return-to-work program had constituted an offer of employment. The tribunal then considered the officer’s physical capacity to work, based on the reports of her general practitioner and seven other medical specialists. The Tribunal preferred the evidence of her general practitioner, who had treated her for about 25 years, over the report of the occupational physician, who had only seen her for an hour’s consultation (obviously heavily biased – duh!). The tribunal accepted that the injured worker’s capacity to work had been limited to a maximum of six hours a day. Requiring her to work full-time had not amounted to an offer of ‘suitable employment’.
The tribunal accepted that the injured worker had great difficulty working 4 hours a day before she resigned because of pain in her neck and shoulder. Since full-time work had clearly been beyond the injured worker’s capacity, it had been reasonable for her to decline to work according to the return-to-work program. Her failure to accept the offer of employment had indeed been reasonable in all the circumstances.
The medical evidence most preferred by the tribunal included a letter from the injured worker’s treating GP dated 24 September 2010, which stated that she had been unfit to work since November 2008. After the surgery on 15 May 2011, the injured worker’s surgeon had reported that her recovery was relatively slow and quite painful and that on 15 June 2011 she still remained totally incapacitated for work. Some other reports stated that she may be able to return to some form of light work in the future but in a very graduated manner.
The tribunal determined that the employer (and insurer) continued to be liable to pay compensation to the injured worker for incapacity for work according to s19 of the Act after 20 November 2008 (after her resignation) and remained liable to do so.
This case demonstrates that there is hope and that injured workers can say NO to suitable duties when they are really to painful.