Further to some recent comments about the widespread practice of “dodgy” rehabbers proposing bizarre “suitable/alternative work” to injured workers, courts have found that some (many!) proposed alternative occupations for injured workers are simply unrealistic.
Alternative jobs for injured workers unrealistic – weekly pay restored
In the following two legal cases, two injured workers who had their weekly pay terminated after 130 weeks (in Victoria¹) based on such dodgy rehabbers/Vocational practices, have had their weekly pay reinstated after the Magistrate Court found the proposed alternative occupations for the injured workers to be unrealistic.
Workcover case 1
Missen v Primech Engineering Pty Ltd  C10777266 (14 November 2012)
In this case, a rigger aggravated his back injury in Sept 2009, after driving/operating a forklift. The injured worker subsequently also developed depression as well as an adjustment disorder with anxiety. He did not returned to work.
The inured worker’s employer/workcover insurer accepted liability for the injured worker’s injuries and paid the worker weekly benefits until March 2012…. that is until they decided the injured workers was now able to work.
At the Court hearing, the injured worker’s workcover insurer (and employer) argued that suitable employment for the injured worker had been “identified” and included work as a hardware sales assistant, service station console operator or as a transport logistics supervisor.
However, the injured worker contested he could not return to work (nor in the identified suitable jobs)because of his (severe) psychological condition/injury.
At the Hearing, the Magistrate (S Garnett) did agree that the injured would (theoretically) be capable of undertaking suitable light duties if it wasn’t for the injured worker’s psychological condition— namely his (severe) depression and adjustment disorder.
Magistrate Garnett stated
“He (the injured worker) has no current work capacity and that is likely to continue indefinitely until such time as he undergoes an appropriate pain management program… and psychological treatment”
As such the injured worker was found to be still incapacitated. The Magistrate ordered the employer/workcover insurer to resume paying him his weekly payments, and from the date they were terminated.
Workcover case 2
Green v Willdarben Farm Pty Ltd  C11668642 (14 November 2012)
In the second case, a nearly blind (in 1 eye) dairy hand suffered a left elbow injury in August 2009, when she was kicked by a cow.
Her workcover insurer/employer accepted liability for the injured worker’s injury and paid her weekly pay until April 2012…again until she was miraculously found fit to work in a childcare job (!), as school crossing supervisor (lollypop) or as in traffic management!
At the Court hearing, the injured worker told the Court that she was not able to do any of these “proposed” jobs because of her injury (heavy restrictions), being nearly blind in one eye, and… lack of education, being a dairy hand worker all her life.
Again, in this case the Magistrate (S. Garnett) found that the injured worker did (theoretically) have a physical capacity for work “but with significant restrictions”.
The Magistrate went on and stated that:
“she (the injured worker) will have great difficulty in completing the necessary training and obtaining the necessary qualifications to work in the identified employments as a child care worker, traffic management or school crossing supervisor”, especially considering her age, physical limitations and lack of educational qualifications
“Her left eye impairment would (also) impede her ability to observe all oncoming vehicles and react accordingly”
“I find that even if (the injured worker) managed to obtain the necessary qualifications, considerable physical restrictions would need to be applied and she would have to find an employer who would be prepared to accommodate those restrictions.
“Realistically, that is not going to occur.”
As such thee Magistrate thankfully ordered the workcover insurer/ employer to pay the injured worker her weekly payments from the date they were terminated.
¹Under s93C of the Victorian Accident Compensation Act 1985, a worker’s benefits expire after 130 weeks unless he or she is assessed as “likely to continue indefinitely to have no current work capacity“.
[Post dictated by WorkcoverVictim and manually transcribed on her behalf]
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