"Retrospective Injuries" - A Recent Lamrocks Case
Lamrocks recently acted in a compensation matter on behalf of a man who was employed as a cleaner at a High School in Western Sydney.
This particular matter proceeded to a hearing before Arbitrator Dennis Nolan in the Workers' Compensation Commission and highlights some of the difficulties faced by parties involved in claims for workers compensation following some of the many recent changes to legislation. This article is provided for Lamrocks clients who may be in a similar situation.
The Cleaner's Case
The school cleaner had been employed by the same Facilities company for many years and was contracted to the school as a result of his employment. While working in the playground at the school, in an area where the grass was quite long, he stepped in a hole or trench that was obscured by grass and tripped forward, sustaining an injury.
Initially, the cleaner felt pain in his left hip and leg so believed that he had injured his hip. He reported the accident and made a claim with his insurer's employer accordingly. After a couple of weeks off work, and some physiotherapy, he was certified as fit for normal duties by his GP.
Following around 6-8 months of ongoing problems with his left hip, the cleaner developed problems in his lumbar spine and was referred to a Neurosurgeon as a matter of urgency. The specialist advised that he required an urgent operation to his lumbar spine and that it would take too long to lodge a Workers Compensation Claim and wait for approval. The operation went ahead less than 48 hours later and was funded by the cleaner's private health fund, with the cleaner lodging a claim for sick pay from his employer.
Unfortunately the results of the spinal surgery were less than optimal. The cleaner however was anxious to get back to work because he was running out of sick pay. He was certified fit to return to normal duties on 30 July 2007, a little over four months after his spinal surgery.
Despite being certified fit for normal duties, he managed to avoid heavy lifting until he had another injury, in which he seriously fractured his right leg in the course of his employment, on 23 January 2009. As a result of this accident, he was totally incapacitated.
In late 2011, over four years after his back injury, he submitted a claim for lump sum compensation pursuant to Section 66 and 67 of the Workers' Compensation Act 1987.
How was the case dealt with?
Following the cleaner's claim, the Insurer declined liability and relied, amongst other things, on Section 261(1) of the Workplace Injury Management Act 1998 which requires a worker to make a claim within six months of the injury. Even though the cleaner had made a claim when he suffered his first injury, the Insurer contended that the first claim only referred to the cleaner's hip and did not mention a lumbar spine injury.
When hearing the case, the Arbitrator also considered other similar cases and the outcome of those. It was noted that a worker cannot be expected to diagnose every consequence of an injury at the time of the injury. As long as the event or accident is reported to the employer and insurer within the required time-frame, then the consequences of that injury were covered.
The treating doctor's notes were also considered and again it was found that an injured worker has no control over notes made by a medical practitioner because the doctor does not have to consider what caused an injury when they are administering treatment.
As a result, the Arbitrator found that the cleaner had sustained a frank injury to his lumbar spine in the original accident on 24 August 2006. The subsequent operation was a consequence of that frank injury and any permanent impairment was also a consequence of the frank injury.
The Arbitrator then referred the matter to an Approved Medical Specialist (AMS) for the assessment of any Whole Person Impairment (WPI) as a result of the injury sustained to the cleaner's lumbar spine and compensation will be determined accordingly.
What does this mean for our injured clients?
This case highlights some of the difficulties that can be faced by clients who sustained an injury before the recent changes to the Workers Compensation. If you have any questions about how your case may be dealt with under the legislation, contact one of our Accredited Specialists in Compensation Law.