Possibility of realistic suitable employment was, at best, theoretical – Vic Court


Further to our article “Alternative jobs for injured workers unrealistic” and the practice of “dodgy” rehabbers proposing bizarre “suitable/alternative work” to injured workers, here is another legal case have where a court has found the proposed alternative occupation for an injured worker to be unrealistic.

Possibility of realistic suitable employment was, at best, theoretical – Vic Court

In a very recent case (Feb 2014), a Victorian employer—Vulcan Steel— and (undoubtedly) its workcover agent miserably failed to convince the Victorian Court of Appeal that a young, seriously injured worker (who cannot sit nor stand “for any significant length of time” and cannot lift “moderate weights”) can undertake light duties and work for example as a traffic controller!

Background of the workcover case

A 22 year old worker jumped from a truck tray onto the concrete floor of a loading bay at Vulcan Steel’s premises in Jan 2005. He felt a sharp pain in his lower back and was subsequently diagnosed with a serious spinal disc injury.

In assessing the injured worker’s fitness for work, the employer and its workcover agent found that while he couldn’t perform his pre-injury duties, he had a “capacity to work in light roles such as road traffic controller or auto parts sales assistant”.

However, the seriously injured worker stated he had no capacity for work, and subsequently applied for leave to seek damages for pain and suffering and economic loss.

The County Court Hearing

The County Court Judge (P Misso) granted the injured worker leave to commence proceedings in June 2013. The Judge found that while medical evidence showed the injured worker might be able to undertake “some very light work”, he had “no residual capacity for suitable employment”.

The Judge furthermore stated the young injured worker “would not be able to tolerate the physical demands” of the jobs suggested by the employer (and workcover).

Believe it or not, the poor injured sod’s employer (and workcover insurer) actually went as far as to appeal against Judge Misso’s decision to grant the injured worker leave to pursue damages for economic loss.  They basically argued that the Judged had erred in finding the injured worker had a permanent incapacity for work!!!

If that’s not enough of an insult, the employer and its workcover insurer also argued that  the Judge (Misso) limited his consideration to the injured worker’s present capacity when he had found the injured worker’s ongoing loss of earnings would be “productive of financial loss of 40% or more“.

The Court of Appeal Hearing

The Court of Appeal (Justices Robert Osborn, David Beach and Kate McMillan) thankfully found that there was “little basis for criticising the Judge (Misso) for coming to the conclusion that, in reality, the [injured worker] was not fit for suitable employment”.

The Justices stated:

“The possibility of realistic suitable employment within the [injured worker’s] physical capacities was, at best, theoretical; and at worst, when one considered all of the evidence properly, wholly unrealistic”.

The employer’s criticism of Judge Misso’s decision was “misplaced”.

Furthermore the Justices stated the injured worker had limited education and skills, and “plainly has a loss of earning capacity which will continue permanently to be productive of a financial loss of 40% or more”.

“The evidence discloses a man who effectively cannot bend, twist, lift even moderate weights, reach for high objects, or sit or stand for any significant length of time”.

The appeal was dismissed.

You can read the full text of the legal case here:  Vulcan Steel Pty Ltd and Victorian WorkCover Authority v Fullerton [2014] VSCA 18 (25 February 2014)

It is ∗almost∗ unbelievable to what length(s) workcover insurers (and their clients: employers) will go to mitigate their losses. Particularly in cases where economic (pecuniary) loss is claimed, workcover (et al.) will do the impossible in an attempt to “prove” even the most seriously injured workers amongst us can “work”, in the most bizarre and most unsuitable jobs imaginable! Just as in the case above, how can a seriously injured worker with a severe back injury, who cannot either sit nor stand “for any significant length of time” and cannot lift “moderate weights, work as a ‘lollipop’ traffic controller, for Christ’s sake?! And this comes from the Victorian Workcover Authority? Hellooo?

Workcover insurers don’t have a conscious and lack basic humanity, all in the name of PROFIT.

Thankfully more and more Judges are seeing through this scam, and not only do workcover insurances have to suggest occupations, there is a real onus on them to see if it is really suitable and viable for an injured worker to do so


[Post dictated by WorkcoverVictim and transcribed on her behalf]