Injured workers restricted duties must be adhered to by employer


When an injured worker returns to work on “restricted duties” it is absolutely necessary that the restrictions are adhered to. If they are not, it can have an impact on not only the amount of damages that an injured worker (may) receive(s), but also the percentage that the injured worker’s employer is held liable in a multiparty claim. In this legal case, the injured worker’s employer copped a $1.3 million damages bill because of the injured worker’s post injury exacerbation.

The use of an untrained and unsuitable driver has ultimately cost Linfox $780,000 in compensation to a warehouse worker, but lawyers point out that the figure was augmented by $520,000 from a customer due to it not adhering to the employee’s (injured worker) restricted duties.

Injured workers restricted duties must be adhered to by employer

Facts of the Victorian legal case

Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62

The injured worker was employed by Liquorland. The injured worker’s supervisor directed her to climb into a Linfox truck to help the truck driver (who was employed by Linfox) unload some roll cages that were full of alcohol cartons. Unfortunately, he truck driver unexpectedly let go of a cage and the injured worker injured her back.

Linfox conceded that the truck driver was incompetent, inexperienced, did not know how to use the machinery/features of the truck that should be used when unloading roll cages and that he was of no real use in the unloading of the truck.

Liquorland and Linfox disputed their respective degrees of responsibility for the injured worker’s back injuries however the amount of the injured worker’s damages (common law) was agreed prior to trial at $1.3m.

The judgment

There were 2 major issues considered by the court; namely:

  1. the liability (for negligence) of each party – Liquorland and Linfox, and
  2. whether the injured worker’s later performing work beyond her restricted duties made her injuries worse and therefore increased Liquorland’s level of responsibility and liability

Linfox argued that Liquorland should be more liable because of their failure to stick to the injured worker’s restricted duties (she was performing her pre-injury duties and working longer hours than allowed by her medical certificate post the unloading incident). The injured worker suffered several exacerbations of the original back injury she suffered in the unloading incident while she was on restricted duties.

Liquorland argued that Linfox should be held to be more responsible because the exacerbations that the worker suffered were the “normal sequelae” of the back injury caused by the unloading incident, oh really?

The Supreme Court found that:

  • The fundamental cause of the unloading incident was the incompetence of the Linfox truck driver who was apparently not given sufficient training
  • The additional training for truck drivers that were implemented by Linfox after the incident should have been implemented before the incident.
  • Liquorland should have provided its workers with specific instructions not to assist with unloading Linfox trucks
  • The injured worker’s exacerbations of her back injury were caused by working beyond the restricted duties that she was supposed to be completing

Liquorland was found by the VIC Supreme Court to be 40% liable (responsible) for the injured worker’s damages because they allowed her assist in unloading the truck and because of the subsequent work they allowed her to complete that was beyond her “restricted duties”. The original liability was 35%, however an additional 5% was added because of the injured worker’s exacerbating her condition by completing duties outside of her restrictions.
Linfox was found to be 60% liable for the  injured worker’s damages because it was more at fault than Liquorland (because they sent an inexperienced and incompetent truck driver to carry out a difficult task).

“When an employee returns to work on ‘restricted duties’ it is imperative that the restrictions are adhered to,” they say.

“If they are not, it can have an impact on not only the amount of damages that a worker receives, but also the percentage that the employer is held liable in a multiparty claim.”

It is high time that injured workers’ employers be severely punished by forcing injured workers to undertake tasks beyond their medical restrictions. It happens all too often that injured workers aggravate their injuries because their bosses just don’t care. Injured workers are also very vulnerable and often fear they will lose their jobs if they don’t do as told by their bosses.

2 Responses to “Injured workers restricted duties must be adhered to by employer”

  1. I know this story is from Victoria, but I wonder how it would go in NSW. Insurance companies insisting that injured workers go back to work when they are not recovered is a common occurrance now. Does this mean that if you have restrictions because of your injury and they are not adhered to and you injure yourself again, you can sue again? Supreme Court rulings set a precedent which can be used anywhere in Australia so hopefully this would apply.

  2. @ Workcovervictims – Couldn’t agree more! Great article.

    I’m wondering though what the personal story is on how an injured worker got reinjured to end up in the Supreme Court. Not everyone is fortunate to have their case heard in Court & I suspect many are still deserving.

    In my experience there are plenty of obstacles; denial, suppression, disinterest, relevance, irresponsibility complexity, financial resources, opportunity costs & time itself to name a few.

    Psychological personal injury (secondary/new) whilst working with restricted duties is not so easy to prove.

    HardRockTuffNut April 18, 2015 at 10:47 am
read-before-u-commentThis is a statement pointing you to our seriously injured but esteemed and honourable Social Networking Sites Warning and our comment policy. A must read in the context of a very adversarial workcover system! Remember to mention in which state you reside if you seek advice.

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