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.
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.
Some related articles
- Prior workcover claims and difficulties obtaining a job
- Changes to workcover QLD legislation – also driven by profits
- Workcover QLD – obtaining details of pre-existing injuries from prospective employees
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