Court awards injured worker K500 taking into account difficulty of finding new employment when disclosing injury

injured-workers-unemployable

This interesting legal case (QLD) highlights that, in awarding future economic loss, a Court can take into account that an injured worker must disclose his/her injury and claim history to any prospective employer, putting the injured worker at a very significant disadvantage when competing with able bodied applicants in an attempt to find new employment.

Court awards injured worker K500 taking into account difficulty of finding new employment when disclosing injury

We refer back to the recent changes to the Queensland Workers’ Compensation and Rehabilitation Act 2003, which  have generated quite some debate. Whilst the focus has been on the introduction of a threshold (of 5%) for common law claims; the amendments now also allow (prospective) employers to obtain information about pre-existing injuries and workcover claims of prospective employees, making it even more difficult for injured workers to obtain new employment.

Court awards injured worker $500,000 for future economic loss despite his higher post accident income

Insurance and Risk Alert: 7 February 2014
Article by Robert Tidbury and Anna Hendry – HopgoodGanim

Future economic loss is frequently the most significant and controversial of the heads of damages in personal injuries claims.

In this Alert, partner Robert Tidbury and senior associate Anna Hendy outline the factors that may be considered by a Court in awarding a global sum for future economic loss in such circumstances where the plaintiff’s (aka injured worker) post-injury income exceeds his or her pre-injury income, with reference to the recent Haylett v Hail Creek Coal Pty Ltd decision.

Key take away points

  • Where the plaintiff (injured worker) has returned to work in a higher paid role but risks periods of unemployment, the Court may take into account the higher pay rate in considering the appropriate future economic loss award.
  • Where there is evidence a plaintiff (injured worker) is at risk of periods of unemployment, the Court may take into account the disadvantage to the plaintiff in being required to disclose his or her injury history to prospective employers.
  • Even if the plaintiff (injured worker) has retrained into a new role, he or she may be compensated for the loss of opportunity to work in his or her pre-injury role.

Background of the legal case

In this quantum-only matter, a 42 year old plaintiff is alleged to have suffered referred pain in his right elbow over a period of time from January 2010 in the course of his employment as a bulldozer driver. Radiological investigations carried out in April 2010 revealed a C6-7 disc protrusion. On 9 August 2010, the plaintiff underwent a C6-7 discectomy and fusion to his neck.

He returned to work with his employer on 20 October 2010 on light duties. He was then retrained by that employer to work as a member of a drill crew at a mine, on a significantly higher weekly income than his pre-injury income. The Court accepted that the plaintiff was able to carry out those duties on a full time basis with some difficulty. The plaintiff remained employed in this alternative role up until the date of judgment.
Reasons

In his decision, Baulch J accepted Dr Cook’s assessment for the plaintiff of a 25 percent whole person impairment over Dr Weidmann’s evidence for the defendant. The parties were in agreement about most of the heads of damage and it was left for the court to make an award for general damages and future economic loss.

In awarding a global sum of $500,000 for future economic loss, Baulch J considered the following factors:

  • If the current trend continued at the mine where the plaintiff was employed, his already high earnings were likely to increase. Therefore, the Court concluded that were the plaintiff (injured worker) to suffer economic loss in the future, such loss would be incurred at a rate of not less than $1,750 net per week, the plaintiff’s higher post-injury income, during any period in which he was employed.
  • Despite acquiring a new skill as a result of retraining by his employer, the injured worker remained unfit for return to work in his pre-injury role and his preferred role of dragline operator.
  • The injured worker’s previous employment had always involved physically-orientated work and he must disclose his injury and claim history to any prospective employer, putting him at a very significant disadvantage when competing with able bodied applicants.

With between 23 and 25 years working life remaining, if the injured worker continued to work for that entire period at his present rate of earnings, his future earnings would have a present value in the order of $1,300,000. When arriving at a global sum of $500,000 for future economic loss, his honour remarked that the amount was slightly less than 40 percent of the injured worker’s notional earning capacity.

When the other heads of damage agreed by the parties were incorporated into the judgment, the total award made to the injured worker was $637,872.54.

Whilst this legal case was heard in QLD, we would like to point out that all states actually require an injured worker to disclose their injury (workcover claim history), when asked, to prospective employers. If you have been in restricted or light duties and you are suffering some sort of work injury, you are also more likely to be asked about it when applying for a new job than ever before.

If you are specifically questioned in writing and you don’t inform your new boss that you have been injured, and you then go on to exacerbate/aggravate that injury, WorkCover will most likely not cover you.
That’s right, failure to disclose an existing injury to a new employer can exempt that employer from assisting you and will shut the WorkCover benefits door in your face.

In that light, we would urge all injured workers who have a common law damages case and are having difficulties finding new employment, to share the above legal case with their lawyers as to get more leverage for a huge problem that is widespread and affecting countless of injured workers.

 

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5 Responses to “Court awards injured worker K500 taking into account difficulty of finding new employment when disclosing injury”

  1. I find that article very informative, especially when trying to become employed again when injured. Don’t enjoy the pain but enjoy some of the reading!!
    Question : Why could it then be stated acting on behalf of injured workers some are told “don’t tell the employee your injured when medical evidence proves it”.

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  2. I am TPD medically discharged, however my insurer submits work capacity reviews to my treating doctors and psychologist annually at the moment. What are the arrangements that insurance companies have with employers of jobs, that your insurance company may deem you fit to undertake? How do they convince those employers to employ you? And as this article so rightly proves, non-disclosure of current/previous injuries could void any future Workers Comp claim. This just proves how much worse we are off in getting employment in the future ‘IF’ you are able to recover. Personally I know I would pose a risk to other employees (including myself) safety and any prospective employer would have to accept that risk and the possibility of being sued by other employees for employing me in the first place. If I could work again I would. I would much better off in the end financially. But my damned PTSD and depressive condition makes me very volatile and unpredictable and a danger to myself and possibly others.

    I digress but NSW work injury damages lump sum payouts are paltry and hardly worth going through all the stress. With all the massive deductions that are taken out, the lump sum does not in any way represent what you would be earning each year until retirement age, despite that being the whole reason behind lodging a WID claim. Contributory negligence is a huge factor and often slices 50% off your lump sum as well. NSW WID claims are hugely unfair ever since Bob Carr changed the laws in 2002 to limit the payment to economic loss only. A ‘reasonable offer’ settlement in ‘no win no fee’ cases is often not reasonable at all but if your lawyer argues it is, despite how pathetically low the offer is, you are forced to accept as per your signed agreement for a reasonable offer. The ‘reasonable offer’ may be because it is too risky to take it to court, your lawyer couldn’t charge you for legal fees if they lost (they would still get other fees not included in the no win no fee though) , and of course you would be up for all the legal costs and end up financially and psychologically ruined.

    It actually may be better off to stay on Section 37 payments for the rest of your life and hence have all medical costs, travel claims, consultations, etc. are covered. The down side being you are a prisoner to the insurance company and they will try to wear you down until you kill yourself or die from stress related illness. In other words – IT’S ALL BAD NEWS.

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    • @Headnoises,

      Yep – you are spot on. You are totally fucked whatever course of action you take.

      It’s a perfect set up – the injured worker can never win and the insurers and lawyers can never lose!

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  3. How right you are!! That is exactly what goes on so no injured worker has a real chance in this system.

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  4. Yes I am in a WID in NSW at present and with a current 24%wpi and will go higher due to other parts of body stressing out taking any payment is a killer. What can you do
    I too have thought about staying on payments from insurer but man that would be tough as I am so close to going to war.
    Can you maybe get back to the odd hour weekly(light office work) and get 80% of your pre injury pay? maybe that way I earn something remotely close to retirement age.
    really not sure why insurers are not criminally charged, what indemnity do they have from being humanely reckless.
    Basically you get life with an injury like mine so what is life when seeking fair and reasonable retribution against a negligent employer?
    in the old days jury’s would not hang you they’d applaud you for fair justice.
    Join the IWA (Injured Workers Army)

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