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 [2012] 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’.
In evidence
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.
As I said in my previous comment … if only I had known, if only I had had the courage to stand up…
Please, please if any of you can’t cope with a return to work or “suitable duties” and you are exacerbating your injury, please, please STOP no matter what – YOUR HEALTH comes first. I have unfortunately been bullied and intimidated by my Xchanging case manager (and scheming employer) to the point where I believed every word she said, to the point where I was literally petrified of her and believed that if I stopped working with my arm hanging out of its socket and in horrendous pain, she would even take away my pain medication…
I have now lost ALL function in my R arm and live a life of sheer hell – horrific pain – and I am facing life threatening surgery after surgery for the rest of my life, just to manage the “pain side” of things, and let’s not even speak about ever regaining some movement in that arm.
I have nightmares about the bullying, the sacking, the way I was treated, I still feel like vomiting even when I just think about it all……………
PLEASE REMEMBER THAT NO AMOUNT OF MONEY OR COMPENSATION CAN EVER MAKE THIS RIGHT, CAN EVER TAKE THE PAIN AWAY OR FIX YOUR INJURY
To everyone:
If you have ever received a threatening, demeaning or bullying letter from WorkSafe, WorkCover NSW (or agencies in othe states); or from Allianz, Xchanging (or other insurers) — do not be afraid!
These vultures prey on on us when we are most vulnerable. We must stand together. Please email this website with evidence of bullying and intimidation by these people. As has been repeatedly stated, your personal information will be withheld from the public, but the rest must be exposed.
These organisations are run by people. Organisations don’t run themselves. The inviduals involved in mismanaging your workers compensation claim must be held to account.
Be strong, be brave. Together we can make it better for us all.
☼ Inspire and empower injured workers to be Architects of Change ☼
Please, please help us in any way you possibly can imagine raise awareness, educate, empower and ENCOURAGE injured workers to stand up for their rights. Together we CAN make a change to this barbaric system! Share your stories, expose the real workcover, and help us say NO MORE!
Can anyone help?
I have a work cover claim ongoing from 2006, the insurer accepted liability for an injury PTSD and adjustment disorder from years of working under a bullying supervisor in NSW Secondary Schools. I battle my anxiety problems everyday and the actions of the insurer constantly exacerbate my injury because they are the bully. luckily I have a supportive GP and Psychologist.
I was encouraged to return to work and found a job at Curves Women’s Gym. I was given free membership and encouraged to work out. I am trialling a new exercise and diet plan called curves complete for my employer and it requires me to exercise 4 times a week in the Curves Gym. Last week I injured my back working out at Curves and my doctor says that it’s not a workcover claim because I was not at work?? I really don’t need another insurance company breathing down my neck?
Allianz has now told me that if I was injured in another workplace then they are not liable and I follow that….. but if it’s part of an injury management plan what then?
My doctor has given me a normal incapacity certificate and because my work is of a casual nature with no sick leave…
can this affect the makeup pay I am getting?
Your thoughts would be accepted with thanks
It is our understanding that given that you are employed by curves and provided you injured yourself there during your working hours (not during time off) you could lodge a new workcover claim.
You would need to look up whether being casual falls under the definition of a “worker” under the NSW legislation (see Resources–> state by state–>NSW for the legislation)
If your injury is severe and you need time off and medical treatment such as physio, rehab, surgery it may be worth putting a claim in, but if your injury is a “sprain” and will heal in a few days, think again before lodging a claim…
Allianz cannot accept liability for this injury even though it is part of your “injury management plan”. You could even argue that talking a daily walk is part of your therapy and injury management plan and if you were to slip/trip what then… do you know what I mean? Or what if you had to go to the pharmacy to get your prescribed drugs for your (first) injury and fell? We know of injured workers who were injured during or on their way to IMEs, liability for those injuries was also rejected. The laws are quite muddling but in a way it does make sense.
Hope this helps. Keep strong!
I am currently on workcover stress leave after months of bullying and flat out harassment from my supervisor this has lead to me having anxiety attacks, counselling and anti depressants. Last week I quit my job as nothing has been done to rectify the problem nor has my supervisor been reprimanded. As I have resigned is work liable to pay my weekly payments until my doctors sees me fit for work again????
@ Jax – not entirely sure, and the legislation also varies from state to state, but our best informed guess is that when you resign (from your own will) workcover payments will stop, that is provided your claim was accepted in the first instance by workcover (insurer) and you received weekly pay. That is why it is so very important never to resign when you have lodged a workcover claim. They will invariably harass you and state that you quit, therefore the employer is no longer obliged to provide you with a) pay and 2) suitable duties under the legislation, and you’re basically on your own. Best would be to seek legal advice ASAP, or at least Union advice.
In this case above, he 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 (NSW) after 20 November 2008 (after her resignation) and remained liable to do so. So, you may have a case, and may want to read the act in NSW but you will probably need heaps of help (legal).
@Jax: Resigning from your employment with your pre-injury employer for reasons unrelated to your work related injury is considered a “breach of mutuality”. This means that you are not making yourself “ready, willing and able” to perform any suitable duties offered by your employer. As a result, you may not be entitled to receive any further weekly payments of income maintenance. You need to seek immediate legal advice.
We will post an article in depth tomorrow about this very topic.