We have said it many times, the best and only ways to preserve evidence of your work injuries are by reporting all of them promptly to a doctor or other medical provider (i.e. hospital), by accurately filling in the injury claim form, and by photographing any visible marks, cuts, bruises, swellings, including any casts (plaster), splints, bandages or other devices you are using. Without an early medical record (as soon as you become aware of the injury or that the incident occurs) of all your injuries, and photos where possible, it will be more difficult later to convince the workcover insurance company that you were injured in the ways and to the degrees you claim. The following case highlights the facts!
The importance of an accurate Injury Claim form
A recent (Oct 2012) Victorian Magistrates’ Court decision highlights the importance of ensuring that the manner in which an injury occurs is accurately recorded on the worker’s injury claim form.
Magistrate Garnett found that in the case Robinson v SPI Electricity Pty Ltd , he could only make a formal judgment or decision on the mechanism of injury that was recorded in the claim form.
Background of the workcover case
Robinson worked as a Field Services Representative in regional Victoria for 10 years, and his job required him to check the gas meters of clients. The job was physically demanding requiring prolonged sitting, repetitive bending and frequently forcing open gates and to scale fences.
Robinson had reported to doctors and his family that he had experience stiffness and soreness in lower back for a number of years, which he believed was caused by his duties at work.
On 1 February 2012, Robinson went to work as usual. Although there was no specific incident on that day, he experienced particularly severe pain in his low back and could not complete his shift.
Robinson subsequently lodged a workcover claim and as such filled in a Worker’s Injury Claim Form,which stated that he had sustained an injury on 1 February 2012.
As is quite common (hey!), Robinson’s injury claim was rejected because the employer (read insurer) were of the (sick and twisted) opinion that Robinson had injured himself not at work but while playing at home with his children.
Robinson took the matter to Conciliation (ACCS) and a Certificate of Genuine Dispute was issued by the conciliator, following Robinson then launched court proceedings
As Robinson stated, he had experienced back pain throughout the course of his employment, due to the physically demanding nature of his job. So, Robinson’s “Statement of Claim” in Feb 2012 in the Magistrate’s Court referred to a “lower back injury sustained during the course of this employment“.
Needless to say that WorkSafe’s (sick and twisted) defense (April 2012) did not agree with Robinson’s “course of employment” pleading.
At the hearing (Sept 2012), the Defense for WorkSafe argued that it was “not open to the Magistrate to find that the worker’s injury had been sustained over the course of his employment”. They argued that ” if it was a work injury, it could only be found to have occurred on 1 February 2012 – because that was the injury had been recorded in the claim form” [WTF!]
To explain the saga in layman’s terms, basically WorkSafe (their agent and defense) argued that only the 1 February “mechanism” – and NOT the “course of employment” mechanism had gone through the necessary process as set out the Accident Compensation Act 1985 (Vic): worker’s claim, followed by rejection, followed by Conciliation, followed by the issuing of a Certificate of Genuine Dispute, followed by court proceedings. – hallelujah!
The Court’s thankful findings
Magistrate Garnett – somehow bizarrely -accepted WorkSafe’s argument, finding that it was not open to him to judge the claim on the basis of an injury of the course of Robinson’s employment, but only on the basis of an injury occurring at work on 1 February 2011. [There must be a loophole in the legislation somewhere folks!]
However and thanks God, Magistrate Garnett found that Robinson had sustained an injury at work on 1 February 2011 and compensation was payable to Robinson on that basis.
What can we, injured workers and prospective injured workers learn from this?
Robinson’s claim for compensation was obviously dangerously weakened by the exclusion of the ‘course of employment’ mechanism. But fortunately for him, Robinson succeeded anyway in having his claim (injury) accepted.
In either of these scenarios, Robinson would have had his claim rejected or have received far less compensation!
We do find it extremely
interesting disturbing, given the above drama and the obvious “loophole in the legislation”, that the claim form (VIC) does not contain a ‘course of employment’ tick box, hey! The form only asks: ‘What was the date and time the injury occurred?’
Related must read:
[Post dictated by workcovervictim and manually inserted on behalf of workcovervictim, who remains incapacitated]