A couple of weeks ago I came across this bizarre but interesting Victorian legal case, whereby the Victorian Supreme Court decided (in 2011) to reduce common law damages awarded to a seriously injured worker by a whopping 70% -because the injured worker – who suffers a major back injury – continued to “recklessly” work on the family farm, harvesting tobacco, despite medical advice . The injured worker who continued to do major damage to his back also sued his father, whom he blamed for basically forcing him to do certain work tasks (for 1 1/2 hrs) which he alleged caused his back to “break”.
This legal case, while perhaps extreme, did raise some fundamental questions with me, and undoubtedly with countless other seriously injured workers. Particularly, what if the (seriously) injured worker is repeatedly FORCED at gun point to return to work, in the most unsuitable duties, or for example without the repeatedly prescribed ergonomic aides, at the whim of a bonus-greedy, ignorant case manager, or because of a highly biased IME “report”, or simply because the employer and the insurer choose to ignore certificates of total incapacity and simply force the injured worker to remain at work.
These kinds of scenarios do happen everyday. Some happened to me! The question is, what happens when the injured worker aggravates his/her injury because of the sheer, yes, negligence of the employer/insurer?
For example, I know of a seriously injured worker who was repeatedly denied the medically prescribed (simple) ergonomic aides in the workplace, and was forced to remain at work full time, and forced to continue work in extreme pain, forcing him to use his broken arm. This injured worker ended up undergoing on average 2 major surgeries PER YEAR because he kept tearing her injured elbow to pieces. He was eventually declared unfit for any work, and STILL the case manager and the employer forced her to continue work (yes, despite a certificate to total incapacity!). To save you a long story, this injured worker is now left with a catastrophic injury and has to date undergone 8 massive surgeries. Now, was this injured worker “reckless”?
How many injured workers are forced to work in the most unsuitable duties? How many are actually aggravating their injuries because they have NO option but to continue work (i.e. they are verbally threatened that their weekly pay or claim will be stopped if they don’t “cooperate”)? If an injured worker is coerced in undertaking tasks they are medically not allowed to do, but end up doing them because they have no choice, who is responsible?
This legal case is really an eye opener as far as this issue concerns.
(We will be posting some more information and articles, incl legal cased on the “suitable duties” that must adhere to doctor’s instructions in the near future)
Reckless injured worker’s common law damages reduced by 70%
The Victorian Supreme Court decided in the case Pasqualotto v Pasqualotto  VSC 550 (27 October 2011) that common lawdamages awarded to a “reckless” injured worker – who continued to work on the family farm, harvesting tobacco, despite medical advice, (and then sued his father!) – was to be reduced by a whopping 70%
The injured worker suffered a serious spinal injury while harvesting tobacco in 2005.
He appealed against a jury’s decision to reduce his common law damages to $844,067, after it found he knowingly exposed himself to risk, and was basically “reckless”.
The hearing at the Victorian Supreme Court (2011)
At the Appeal hearing, in the Victorian Supreme Court heard that the injured worker, who at the time was just 36 years old, had undergone a double fusion of his spine in 1997 after a car accident. They also heard that between the period of 1997 and 2000 the injured worker’s surgeon repeatedly warned him that manual work would “virtually guarantee the demolition of the L3/4 disc”.
However, despite this explicit medical advice, the injured worker returned to work on the family farm to help harvest tobacco.
His job involved driving a vibrating harvester while bending and stretching to pick ripe tobacco leaves.
The court heard that in March 2005, while working , the injured worker complained of back pain, but his father told him to stay on the harvester until he could relieve him.
After another hour and a half of picking tobacco leaves he had said he was in so much distress he could not stand up. He was subsequently diagnosed with a collapsed disc and required further surgery.
The argument of the injured worker
At the Supreme Court, he injured worker argued that he could not be found guilty of contributory negligence because at the time of the incident he was “performing work in accordance with a specific direction” from his employer, namely his father.
The injured worker further argued that he had no control over the work system used to harvest tobacco, which the jury had found to be in breach of manual handling ( and other plant Regulations).
The Supreme Court finds the injured worker’s negligence more significant
Justice Kyrou also stated that it was open to the jury to find the employer (the injured worker’s father) did not have “anywhere near” the worker’s knowledge of the risk of injury to his spine, or which tasks would contribute to further damage.
Justice Kyrou did also uphold the jury’s finding that the (injured) worker’s disc collapse was caused by the gradual disintegration of the disc from the time he returned to work, and not by the extra hour and a half he worked following the onset of pain.
Justice Kyrou ended by saying that…
You can read the full text of the legal case here: Pasqualotto v Pasqualotto  VSC 550 (27 October 2011)
[Post dictated by workcovervictim and manually transcribed on behalf of workcovervictim]
You may also be interested in the article titled All injured workers are under a legal duty to mitigate their loss
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