The following ten, interesting workcover compensation and legal case summaries cover different matters relating to workcover and common law damages. Some of those matters covered include: reasonable employer action, bullying, psychological injury, breach of duty of care and multiple injuries. The main point in each case has been described and you can read the full text of each legal case by clicking on the links provided.
Workcover compensation cases from the courts
Case 1: Toilet incident — reasonable action by employer — no compensation
The Qld Industrial Court dismissed a worker’s appeal against a refusal to grant her compensation arising from an injury that she alleged arose from contaminated toilet paper in the rest room at work. The court found that the employer had investigated the circumstances and acted reasonably in all the circumstances and so dismissed the claim.
Read the full text of the legal case here—M and Q-COMP (C/2012/22) (11 January 2013)
Case 2: No reasonable excuse for failure to appear — case dismissed
In this case, the AATA rejected a claim for permanent impairment compensation after the injured worker failed to appear. In this subsequent request for reinstatement there was no reasonable excuse for failure to appear offered. The case was assessed as ‘weak’. Request was rejected.
Read the full text of the legal case here – C and Comcare  AATA 863 (3 December 2012)
Case 3: Adjustment order found to exist following bullying
The AATA found that the injured worker, who was an executive level employee of the Tax Office with 25 years of experience (who received an Award for Excellence in October 2009 and two Certificates of Appreciation), had substantiated her claim arising from allegations of bullying and harassment. Managers had failed to address her complaints and failed to provide her with appropriate support. Comcare was squarely on notice of the nature of her claim and the allegations she pressed. The AATA noted Comcare was legally represented by a firm of solicitors and by counsel:
‘And yet, the striking similarity of Mr H’s statement at T19 and Mr S’s statement in Exhibit R6 appears to have gone unnoticed until I raised it at the commencement of the hearing. It clearly raises an issue of credit. How this was over-looked is mystifying and a matter of concern … the case raise issues for Comcare to reflect upon.’
Read the full text of the legal case here – M and Comcare  AATA 850 (3 December 2012)
Case 4: Negative perception of co-worker behind psychological claim — employment not a significant factor
The Qld Industrial Court noted that while it was arguable that the worker’s psychiatric or psychological injury had some indirect association with her employment, when the evidence was fully assessed it was a fair conclusion that her employment was not a significant contributing factor to the development of her injury. Alleged bullying was not substantiated. The worker had constructed a very negative image of a fellow worker and this was a critical factor in her assessment of the work situation.
Read the full text of the legal case here – Z and Q-COMP (WC/2011/156) (3 December 2012)
Case 5: ‘Under-performance processes’ caused psychological injury
The AATA found the employer had implemented what could be characterised as an under-performance procedure without the protections for the employee built into that procedure and without going through the formal step of a finding of ‘unsatisfactory’ at a performance appraisal was not tolerable or fair in the circumstances. This meant the employer had not undertaken management action in a reasonable manner.
Read the full text of the legal case here – M and Comcare  AATA 795 (14 November 2012)
Case 6: Ten-year-old injury found to be related to fall in car park
The AATA was satisfied that the worker’s injury had its genesis in the injuries previously suffered in the workplace over 10 years ago. The tribunal was satisfied that there was a causal connection between the fall and the prior injuries. The chain of causation has not been broken in the tribunal’s view.
Read the full text of the legal case here – P and Comcare  AATA 831 (23 November 2012)
Case 7: Common Law Damages Claim — duty of care breached
The NSW District Court found that the worker had climbed a stepladder with a 25-kilogram bag of plastic pellets on his shoulder. As he was readying himself to swing the bag up and onto the rim of the hopper before cutting the bag open for pouring the beads, the unstable stepladder tilted and moved from under him. In these events he was pushed sideways by the weight of the bag against his neck, and he sustained a painful and serious neck injury. Ever since that time, the plaintiff’s neck, which beforehand had not caused him pain or difficulty, has remained symptomatically painful, despite surgical treatment. The defendant’s admission of breach of duty of care was an appropriately made concession in these circumstances, in the court’s view. There was a verdict for the plaintiff in the sum of $425,832.
Read the full text of the legal case here – A v Tuscan Industries Pty Limited  NSWDC 156 (21 September 2012)
Case 8: Accident (and injury) could have been prevented
The NSW Court of Appeal held that there was evidence that supports the view that the employer could have prevented the accident. The worker-appellant’s evidence as to the supports that could have been used was not challenged in cross-examination and was inherently plausible. It did not require evidence from an expert and, if it did, the appellant had relevant expertise. For a causal factor to be a necessary condition of injury, it is sufficient that the court is satisfied that the factor was probably necessary. On any construction of Civil Liability Act 2002 (NSW), s5D, it would be open to a trier of fact to find that the home-owner-respondent’s assurances were a necessary condition of the conduct which led to the accident.
Read the full text of the legal case hereG v Ollerenshaw  NSWCA 33 (7 March 2012)
Injured worker is NOT malingering despite ‘pain behaviour’ being found
The AATA found that, having seen and heard the applicant give evidence and be cross-examined, although he indulges in what has been described by experts called in this matter as ‘pain behaviour’, the applicant did still suffer pain as a result of his work accidents. This ongoing pain has led to psychiatric illness. The respondent was liable, pursuant to the provisions of the SRC Act, to pay compensation to the applicant for the injuries of aggravation of osteoarthritis left shoulder, cervical and lumbar spondylosis, facet joint degenerative disease and chronic adjustment disorder with depressed mood.
Read the full text of the legal case here – L and Asciano Services Pty Ltd  AATA 545 (22 August 2012)
Case 9: Multiple injuries are considered
The AATA heard evidence in relation to multiple injuries suffered by worker. The tribunal added this comment:
“Diagnoses may change over time. But there are limits to the generous and practical interpretation of medical diagnoses … I note that the evidence establishes that the right hip flexor muscle or right groin strain on 4 May 2004 arose from jogging during a fitness rehabilitation program. This would constitute an injury. The evidence clearly establishes that this injury resolved by 18 May 2004 and it was not related to the intermittent symptoms in Mr O’s lower back that had been present for a number of months and that did not arise from any precipitant, such as the jogging that gave rise to the right hip flexor strain …The present evidence does not establish, on the balance of probabilities, that Mr O’Connell sustained a low back injury in the circumstances he describes. It follows that the decision under review in application 2011/2534 must be affirmed.’
Read the full text of the legal case here O and Comcare  AATA 532 (13 August 2012)
Case 10: Common Law Damages for physical and psychological injuries can be pursued
The Victrian Court of Appeal found that under the Vic Accident Compensation Act 1985, a worker can pursue common law damages for both his psychological and physical injuries:
‘… it was Parliament’s intention, when drafting s134AB of the Act, that “the relevant concept of injury was to be understood in a broad common sense way”.’
Read the full text of the legal case here G v Silaforts Painting Pty Ltd & Ors  VSCA 179 (8 August 2012)
This case has been covered in our article “Injured workers entitled to claim for the totality of their injuries – Victorian Court of Appeal “
Revised May 2014