Injured workers duties unsuitable: case

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In the following 2015 NSW legal case, a workcover insurer (and its client, the employer) tried very hard ( but failed) to appeal a decision which required to compensate an injured worker who resigned from his job. The NSW Court of Appeal found that the injured worker’s duties as prescribed by the worker’s injury management plan were not suitable.

Injured workers duties unsuitable: case

As per our article titled:”Can I resign when I am on workcover” Resigning from your job with your pre-injury employer “for reasons unrelated to your work related injury” is considered a “breach of mutuality”. This basically means that you are not making yourself “ready, willing and able” to perform any suitable duties offered by your employer. As a consequence, you may not be entitled to receive any further benefits.

The following recent NSW legal case shows that workcover insurers (and their clients: employers) will try very hard to deny benefits to injured workers if they resign from work.

The Legal Case: Fairfield City Council v A [2015] NSWCA 166 (18 June 2015)

On 16 October 2008, the respondent was injured at work, suffering bilateral inguinal hernias. After returning to work and performing ‘light duties’ as proposed by an injury management plan, the respondent resigned on 19 April 2010 “due to ill health”. On 22 April 2010, the applicant employer disputed liability for those injuries alleging that the respondent had unreasonably elected to retire rather than comply with its injury management plan as required by s 47 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). The respondent referred this dispute to the Workers Compensation Commission

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Click to view full text of case

[The full text of this case can be found here: Fairfield City Council v A [2015] NSWCA 166 (18 June 2015)]

Background: worker suffered hernias after lifting

In Oct 2008, a local council worker injured his back and groin while lifting heavy stormwater grates and suffered bilateral inguinal hernias. The injured worker returned to work in Jan 2010 to undertake light duties designed by his employer.

On 8 April 2010, the injured worker’s treating GP recommended that the injured worker should cease working. The injured worker subsequently resigned from his job because of ill health. However, in a letter on 22 April 2010, the employer disputed liability for the injured worker’s injuries because he had unreasonably elected to retire rather than comply with the injury management plan as required by s47 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Work duties unsuitable

The injured worker took the matter to the NSW Workers Compensation Commission (WCC) and claimsed for weekly compensation and compensation for his permanent impairment. The injured worker (and his lawyer) stated that stopping and leaving his job had not been unreasonable because he had not been able to undertake the duties assigned to him under the injury management plan, without suffering exacerbation or eve additional injuries.

The light /suitable duties designed for this poor injured worker involved bending, prolonged standing, walking over uneven ground as well as lifting bags of rubbish. These duties had in fact aggravated his lower back and groin pain, and suffered additional new conditions.That he suffered aggravations was well supported by the injured worker’s treating’s GP in the form of a letter. The GP’s recommendations included that the injured worker also be given superannuation since he was essentially fit for retirement.

The NSW WCC did find that the injured worker’s employer (and insurer) did not comply with its obligation to provide the worker with “suitable duties”. The Arbitrator stated that the injured worker had made a real attempt at complying with the injury management plan but that he had not been able to keep up with it. And that was the reason he had resigned.

Appeal lodged by employer/insurer – lost

The injured worker’s employer (and obviously the insurer) tried to appeal this decision in the NSW Court of Appeal. They argued that the NSW WCC deputy president had made a mistake by not finding that the employer (and insurer) had been “denied procedural fairness” because the question of whether it had provided “suitable duties” had in fact not been raised as an issue before the arbitrator. WTF!

The Appeal court did notice that the employer had not provided a copy of the injury management plan and that there may have been some confusion about the terms “suitable employment”, suitable duties” and/or “light duties”. However the Arbitrator had clearly shown that the injured worker’s refusal to continue with the “suitable” work had not been unreasonable. There was no denial of procedural fairness.

The Appeal’s court refused the employer/insurer leave to appeal the matter.

 

Take home message: When an injured or ill worker is assigned “light” / “suitable” duties, those work duties MUST be suitable, taking into consideration the circumstances and the injury.

 

 

[Article dictated by WCV and manually transcribed on her behalf]



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