Injured worker sacked on basis of risk of re-injury – judge ordered reinstatement

We have heard many many stories of injured workers who have been unlawfully sacked, just because they have lodged a workcover claim, or just because they are injured and seen as pain in the b*tt. Employers have become very creative when it comes to finding “reasons” for dismissing injured workers, including using the excuse that the risk of re-injury is too great…It happened to me! In this NSW legal case a Court has rejected an employer’s claim that a rehabilitated worker would re-injure herself if reinstated.

Injured worker sacked on basis of risk of re-injury – judge ordered reinstatement

The case

In 2006, a State Transit Authority (STA) bus driver had sustained a strain injury to her lower back, her neck and her side. She reported the workplace injury but, at the time, continued to work and did not require time off work. However a year later (Mar 2007), the bus driver suffered an aggravation of her injuries and needed time off work. When she tried to return to work, she relapsed and she consequently remained unfit  for work until the following year (Oct 2008).

The bus driver returned to work in Oct 2008, with a medical certificate of capacity.

She worked for about 5 months and then felt she had no option but to retire because she was not allowed to reduce her working hours in order to attend a prescribed physiotherapy treatment programme.

After having undergone her treatment successfully, the bus driver applied for a reinstatement into her job. She stated that her treatment had been successful and that she had also been medically certified fit to work as a bus driver. However, her employer (STA) refused her reinstatement based on their belief that risk of injury to the bus driver was too high.

The bus driver subsequently  lodged a claim for reinstatement under s242 of the State Workers Compensation Act 1987.

The hearing

At the hearing, the employer [STA] stated, in its defense, that the bus driver was only certified fit to drive the depot’s newer vehicles, which implied she was not fit to drive all of its buses. They also claimed that a “practical assessment” by a physiotherapist clearly showed that there was a “genuine risk” of the bus driver re-injuring herself if she were to return to unrestricted duties.

In her defense, the  bus driver contended that her own treating doctor had certified her fit for normal duties. She also argued that the physiotherapist’s assessment that the employer was relying on was not medical evidence. She also showed that her own treating physiotherapist had clearly determined that she had developed the skills to avoid re-injury.

Commissioner MacDonald agreed the employer had no medical evidence proving the bus driver was unfit for her job.

Commissioner MacDonald also said that the bus driver’s own physiotherapist and treating doctor had read and disagreed with the employer’s assessment. “Their views were not expressed in ignorance of the report.

“Of importance is the [worker’s] supporting testimony that… physiotherapy treatment provided her with the technique for the correct use of her muscles for carrying out tasks to avoid pain.”

Commissioner MacDonald subsequently ordered the employer to reinstate the worker and pay her lost remuneration from the date of her application (which was in June 2010) to the present (hearing)

Read the full  case: Therese Smith v State Transit Authority of New South Wales [2010] NSWIRComm 1062 (3 December 2010)

 

Lesson: Don’t let employers [and their workcover insurer] get away with bullsh*t excuses for either sacking you or, as in this case, refusing to reinstate you!
However, there is one very important thing you need to keep in mind before potentially litigating your case and that is that employment laws (i.e. unfair, unlawful, constructive dismissal etc) can seriously interfere with workcover laws, in particular if you are eligible for a common law damages claim. Always seek legal advice!

For example, let’s say your [pathetic] employer says that you are unfit for work, although you have a certificate of capacity [with restrictions/modified duties] and refuses your return to work, even though you may have been performing those very same duties prior to your treatment/exacerbation/surgery/whatever and had a “good performance evaluation”. Simply put, here is the employer [and insurer!] telling YOU that you are unfit to work — this can be a goldmine, or certainly work much in your advantage when you go to court and argue about “capacity for work” and “[future] economic loss”.

 

 

[post entirely entered by T on behalf of workcovervictim]

Shortlink: http://workcovervictimsdiary.com/?p=9784



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3 Responses to “Injured worker sacked on basis of risk of re-injury – judge ordered reinstatement”

  1. The key jargon is: suitable employment and the rulings are coming down harder when large corporations allege they can’t locate ‘suitable employment’

    Some of the sections of the new reforms enlists that Workcover will now police these breaches of the legislation from the employer more vigorously. Time will tell. This is definitely outdated. Workcover do bugger all to prevent the generation and exacerbation of psychological issues to physically injured employees. Why should someone who has a physical injury be victim to psychological distress? Workcover’s role should be to police the treatment more strongly and fine employers and insurers for not keeping in line with the legislation. Let’s not make this system so adversarial. The starving techniques that insurer’s and employers utilise is animalistic.

    In keeping my reference to the comment, at the end of the day, any injured worker OWNS their position for 2 years. Don’t despair. If you are fit for suitable duties within the 2 years (and in exceptional cases, beyond) and you later return to pre-injury function, reinstatement is a likely ruling according to various case law and the direct legislation.

    Further more, i’d encourage you to proceed to apply for internal roles if advertised to build your case of not being afforded the opportunity to suitable employment.

    ………..

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  2. Just a note: in Vic you own your job only for 12 months after the injury: that is the employer only has a “duty of care” for 12 months after the accident  you with re to providing you with “suitable or modified/restricted” duties In other words they cannot sack you for 12 months.

    It is important to remember that the legislation is different in every state.

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    workcovervictim June 21, 2012 at 6:37 pm
  3. Sorry , i refer to NSW

    also,  you can actually be terminated after 6 months in NSW, but on the basis of the above variables, and if breached, you still own your job for the 2 years.

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