Legal cases

Workcover Legal Cases –  Caselaw

We regularly publish and discuss interesting workcover legal cases (workcover court cases) from all Australian states on our blog, because there is so much to learn from them!

injured-workers-guilty-until-proven-innocent

To find the legal cases we have previously posted and that are not listed on this page, simply type “Legal Cases” in the search box or click on the Tag “Legal Cases“.

Let’s start with some very useful links and resources

Victoria

magistrates-court-victoria-logo

Magistrates’ Court of Victoria: Workcover Division Judgements

WorkSafe Vic link to Court Judgments Workers Compensation

Other

Resources

[Taken from the excellent site www.piets.com.au]

Judgments

Some interesting workcover legal cases

Falsely fraud-accused injured worker entitled to compensation

WorkCover Corporation of SA v Trask [2007] SASC 339 (20 September 2007) and (2006) – see article

This court case has highlighted the common law issue of ‘mutuality’, where an injured worker is expected to provide ‘good and faithful service’, in relation to their eligibility for workcover payments. Mutuality is basically a promise to provide good and faithful service by an injured worker (or employee)  in return for mutually extended respect and consideration from the workcover insurer or employer – it is a common law obligation.

Refusal to undertake RTW — compensation stopped

F and Fleetmaster Services Pty Ltd [2013] AATA 38 (25 January 2013)

An injured worker‘s failure or refusal to undertake a rehabilitation program resulted in his right to compensation being suspended. The Administrative Appeals Tribunal of Australia (AATA) found that there was no reasonable excuse for his failure. His claim that the allocated tasks were unsuitable or caused pain was rejected as it was found there was no particular skill required for allocated tasks. The AATA was satisfied that there was no contemporaneous complaint of pain and was not satisfied that the work undertaken caused pain. The original decision was affirmed.Ouch!

Low-back pain — injury not established

M and Q-COMP WC/2012/308 (5 March 2013)

The injured worker alleged that the rehabilitative physiotherapy he had undertaken was causally related to the onset of symptoms in his lumbar spine. The Qld IR Commission concluded: ‘On the consideration of the totality of the evidence before the Commission, I am not satisfied that the Appellant has established that he has suffered an injury within the meaning of s.32 of the Act’.Ooops.

Injury suffered — confirmed on all medical evidence

K and Q-COMP WC/2011/309 (4 March 2013)

The Qld Industrial Relations Commission referred to relevant medical evidence and noted that other evidence confirmed what was found in the course of surgery: namely that an acute injury to the sternum had occurred on 2 September 2010. The tribunal accepted that an ‘injury’ was suffered by the injured worker at work on 2 September 2010 within the meaning of injury in s32(1) of the Act.Well… a failed case of Comcare’s attempt to deny the injury!

 Medical panel not obliged to give directions

C & Ors v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58 (20 March 2013)

Victorian Court of Appeal related to non-economic loss suffered by the injured worker. The Wrongs Act 1958 (Vic) was in issue in this case. The injured worker had to establish that there had been a ‘significant injury’ in order to be entitled to seek common law damages. Their case had been referred to a medical panel that had made an adverse determination — ie against the worker. Key issues were whether the panel’s reasons were adequate and whether the panel was obliged to give reasons. The Court of Appeal found that there had been no error and so the appeal was dismissed.  The legislation basically has imposed on a panel a statutory obligation to provide a written ‘determination’, the substantive content of which is prescribed by subsection (4). ‘In view of that specific, and limited, prescription, it is significant that the provisions are silent about the need for any written explanation of how the Panel came to its determination.’…..

 Work injury not established – injured worker disbelieved

B v Comcare [2013] FCAFC 31 (7 March 2013)

B  injured his back in March 2007. He maintained that the injury occurred at work and so made a claim for workers compensation. Comcare initially accepted the claim, but in August 2010 it revoked its determination. It relied on information obtained at the time the claim was made (but apparently ignored) to the effect that the claim might not have been well-founded. B applied to the Administrative Appeals Tribunal for a review of Comcare’s decision. The tribunal affirmed the decision because it was not satisfied that B had injured himself as he claimed. B then appealed to the Federal Court. He contended that the tribunal had erred in law (appeals to the Court being confined to questions of law). The appeal was dismissed and B then appealed to the Full Court of the Federal Court.

The Full Court concluded: ‘This was not a circumstantial case and it was not a case where the circumstances appearing in the evidence gave rise to conflicting inferences of equal degrees of probability. It is true that direct proof was not available about when the disc prolapse occurred, but direct proof was available about whether Mr B injured his back removing and replacing the toolbox. He said he hurt his back at the time and felt excruciating pain. The tribunal considered that Mr B’s description of the pain was such that, if it were true, one of his fellow employees could not have failed to notice his discomfort. The tribunal was entitled to disbelieve his account. The appeal must be dismissed with costs.’

Denton v Moduline [2007] VCC 515

Judge Kennedy, County Court – 06/06/2007

Matter relates to: Serious injury application – s134AB Accident Compensation Act 1985 – impairment to left hipwhether injury arose in employment on/after 20 October 1999 – whether serious pain and suffering consequences.

Judge I.J.K Ross – 14 March 2008

Matter relates to: Accident compensation – Accident Compensation Act 1985 s.134AB – Serious Injury applicationpermanent loss of a body function – serious injury in terms of pain and suffering consequence.

Judge Davis – 2 May 2008

Matter relates to: Accident compensation – Accident Compensation Act 1985, s.134AB(16)(B) – Injury To The Lumbar Spine – Pain And Suffering – Loss Of Earning Capacity.

Judge Wischusen, County Court – 20/10/2008

Matter relates to: s 134AB, injury to cervical spine, causation issue where compensability accepted, extent of loss of earning capacity.

Judge O’Neill – 10 November 2008

Matter relates to: Accident compensation – Serious injury application – s.134AB Accident Compensation Act 1985 – injury to hip aggravating underlying degenerative disease – whether consequences achieve the “very considerable” level – causation – loss of earnings – whether consequences result in 40 per cent loss of earning capacity 

Judge Bourke K L, County Court –  – 02/12/2008

Matter relates to: Accident compensation – Accident Compensation Act 1985 – injury to the lumbar spinepain and suffering only.

Judge Bowman – 13 March 2009

Matter relates to:  Accident Compensation Act 1985 – s. 134AB – injury to low back – reliance placed upon both single incident and course of employment – whether these need to be considered separately – theoretical capacity for very light work with numerous restrictions – whether suitable employment realistically exists.

Judge Bowman J, County Court – 20/03/2009

Matter relates to: Accident Compensation Act 1985 – s.134AB – physical and psychiatric injuries– pain and suffering damages only – emphasis placed upon psychiatric injury but ruling made in relation to physical injury – earlier acceptance of liability – injury by way of aggravation – factors to be considered.

Judge Lawson – 30 April 2009

Matter relates to: Accident compensation- Accident Compensation Act 1985 – s134AB(37)(a) & (c) – Serious Injury Application – Lumbar spine injury and adjustment disorder.

Judge Bowman – 10 July 2009

Matter relates to:  Negligence – plaintiff injured in the course of her employment as a medical receptionist – whether negligence established – whether contributory negligence – injury to right hip – plaintiff suffering from asymptomatic pre-existing dysplastic condition of hips – whether hip replacement surgery inevitable without intervening trauma – whether plaintiff will undergo hip replacement surgery – prospects of success of such surgery whether plaintiff will return to workforce and if so to what extent – subsequent injury to right hand as a result of hip collapse – consideration of various methods of calculating damages.

Magistrate B.R. Wright
Hearing at: Melbourne
Date of Decision: 23 March 2011
Reasons for Decision
Accident Compensation – Rejected stress injury claim – Whether predominantly from expectation of discipline etc – Alleged serious and wilful misconduct – ‘pre-employment disclosure’ of pre-existing injury – Extent of any injury and/or incapacity – Accident Compensation Act ss.82(2A), (4) and (7)(8).

Frosty medicals smash fortunate worker’s future salary loss funds

Supreme Court damages ruling  illustrating how the clock can be stopped on loss of future earnings calculations when residual disability is assessed as “minor”…

Secretary’s awkward lift bad for betting boss: Tabcorp pays out on paper box back injury

The box weighed about 12.7 kg. It contained 5 reams of photocopying paper. Kathryn Dank was as close as she could get to it.

Leaning forward and over, bending forward and down at an angle, she picked the box up from the floor, turned as she lifted it to put it on her desk to the left and as she was straightening up “felt a twang in her back”.

Dank, represented by McCowans Solicitors, was last week awarded $239,613.62 for her of October 2004 disc prolapse…

Interesting part about the different opinions of defense doctor and plaintiff’s doctor and reason why the Judge chose the Plaintiff’s doctor.

Resort death shock: when a separate WorkCover assessment is required

Part of a Gold Coast security guard’s psychiatric injury attributable to post incident events will be un-compensible, following WorkCover’s successful strike out application in the Supreme Court…. Learn why and how this could have been avoided!

Court allows renewal of claim 13 years after injury: Plaintiff excused in “sorry saga” of “dilatory” solicitors

Solicitors who failed to lodge a WorkCover notice of claim for damages and apply to renew a claim until 11 years after a farm accident had injured their 21 year-old banana picker client, came under heavy criticism last month from the Court of Appeal…. Learn why you should be very careful in choosing your lawyer!

Other bits and pieces

A Q-comp write up about legal cases involving “significant contributing factor” and “aggravation” of injury

 

Please guys, if you come across an interesting legal case, share it with your fellow injured sods – using our contact form below.