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Injured worker awarded K530, hired gun WPI discrepancy and disavowing defence OT

The following recent QLD common law legal case makes for very interesting reading. Not only are the WorkCover QLD defence tactics (outrageously) enlightening, there is also rather a big gap in the injured worker’s assessed whole person impairment between 2 specialists, one presumably a much loved IME by WorkCover QLD, and most interesting is that the defence’s own occupational therapist “disavowed” an earlier very twisted opinion…
Thanks the Judge, for seeing through the ambush and for awarding this worker a fair K530 compensation.

Injured worker awarded K530,WPI disrepancy hired gun and occupational therapist denies twisted opinion


Background of the legal case

Ms S (the injured worker) had been working as a kitchen hand at a Tavern in Qld, when in 2010, she was cleaning a large metal grill drip tray, which fell from the bench. She instinctively tried to catch it when a sharp edge of the grill sliced her hand from the webbing between her second and third fingers halfway down her palm. Ouch!

The injured worker underwent surgery to her hand, but she was left with decreased sensation and grip strength which made a return to work impossible, but she tried. She had  a couple of unsuccessful return to work trials in a hospitality role and a few short term engagements, but had to stop work in October 2010.

The injured worker underwent further surgeries for a wound infection and later a carpal tunnel syndrome, which was not successful, leaving her with chronic pain.

It is understood that the injured worker’s symptoms gradually worsened and she is now unable to use her left, non-dominant hand without pain, which makes it very difficult for her to obtain/undertake work as she is one handed.

The hearing

WorkCover QLD accepted liability for the injured worker’s injury, but -as they do- of course contested the extent of injury and the amount of compensation that should be paid.

Whole person impairment discrepancy – the Hired Gun

Interestingly there were two specialist opinions in relation to the injured worker’s whole person impairment (WPI) with a rather significant gap between the two. Hand surgeon Steven Coleman – presumably a favourite hired gun- assessed the injured worker with only 8% WPI; whereas hand surgeon David Van der Walt made an assessment of 14% WPI (almost double… duh?). Note the commentary made by the injured worker: she states that Dr Coleman “had forced her fingers” when testing range of movement, which he (of course) denied!

Needless to mention that WorkCover QLD desperately “urged” the Judge to accept the opinion of Hand surgeon Steven Coleman (8%) and not that of Hand surgeon David Van der Walt (WPI of 14%).

In the court/judge’s view, however the wide discrepancy between the “experts” in terms of WPI was deemed “irrelevant” given the injured worker was accepted as being essentially unemployable. Also:“Both surgeons doubt future treatment will significantly improve her condition.”

The surveillance trickery

Of course, WorkCover QLD tried hard to discredit this injured worker by means of surveillance footage. Note that they covertly filmed this injured worker attending her occupational therapist (!!!)

Video surveillance showed the injured worker’s “left arm swinging freely” (duh!-it is her hand that is injured), however was thankfully not found to be damaging or discrediting to the injured worker’s case because it also showed her ”resting her left hand on her thigh and kept her left limb relatively still”. Nice -pathetic- try, WorkCover QLD!

In addition, a Neurologist – Dr Don Todman had performed nerve tests and submitted  a firm  diagnosis consistent with ”intra-neural scarring”. The court was also satisfied of the injured worker’s truthfulness and found her to be a credible witness.

The defence’s Occupational Therapist quickly disavows earlier twisted “opinion”

Of interest too is the defence’s own Occupational Therapist – Anne White– who quickly “disavowed” (=denied) her earlier unfavourable/twisted and biased opinion (allegedly because of a “misunderstanding” in Dr Coleman’s -the hired gun- diagnosis).

K527 in compensation awarded

The end result and good news was that WorkCover QLD was ordered to pay $527k in compensation to this injured worker, including general damages of $45k, past loss of wages of $110k and future loss of earning capacity of $360k.

We urge anyone who is facing a common law damages claim to read the full text of the case: Simmons v Wanless & Anor [2014] QDC 042 Kingham DCJ 10/03/2014. It is a textbook legal case in terms of classic but misguided workcover defence tactics.

Find more QLD legal cases here: http://www.sclqld.org.au/caselaw/QDC/2014/042

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

Court awards injured worker K500 taking into account difficulty of finding new employment when disclosing injury

This interesting legal case (QLD) highlights that, in awarding future economic loss, a Court can take into account that an injured worker must disclose his/her injury and claim history to any prospective employer, putting the injured worker at a very significant disadvantage when competing with able bodied applicants in an attempt to find new employment.

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Prior workcover claims and difficulties obtaining a job

Let’s refer back to the recent changes to the Queensland Workers’ Compensation and Rehabilitation Act 2003, which  have generated quite some debate. Whilst the focus has been on the introduction of a threshold (of 5%) for common law claims; the amendments now also allow (prospective) employers to obtain information about pre-existing injuries and workcover claims of prospective employees, which we – injured folks – believe is a disgrace and an insult in the context of an already extremely adversarial workers compensation system.

Continue Reading…