Compensation for Injured Worker: Jockey Successful in Claim 9 Years post-injury

The case of Simon Blackwood (Workers’ Compensation Regulator) v Ian Andrew Toward looks at an injured worker and old injuries.

Facts 

Mr Toward was a jockey who was injured on 21 August 2004. On that date, the horse he was riding flipped over the barrier prior to the start of a race. Mr Toward was pinned and subsequently injured.

Mr Toward was described by the Court to have a quality that was “completely admirable – stoicism in the face of pain”.

Notwithstanding the injury, Mr Toward rode in other races that day, and continued to ride in the week after.

However, Mr Toward’s pain continued, and on 1 February 2005, Mr Toward was examined by a general practitioner (Mr Simonds), who referred Mr Toward to an orthopaedic surgeon (Mr Pozzi).

However, no application for compensation was commenced until July 2013, when Mr Toward again consulted Mr Simonds and Mr Pozzi. In this regard:

1. 1. A Workers’ Compensation Medical Certificate was issued by Dr Simonds on 16 July 2013 with the diagnosis of severe arthritis in the left hip. The date of injury was noted as 21 August 2004, and the cause of injury as “Horse bucking and falling within a stall pinning Ian under. Numerous other injuries as jockey.”
   2. On 17 July 2013 Mr Toward commenced an application for compensation with WorkCover Queensland, with the injury claimed as osteoarthritis of the left hip.

At first instance, that application was rejected on the basis that there was insufficient medical evidence to support the claim. On review the decision was upheld.

Subsequently the matter was appealed to the Queensland Industrial Relations Commission, where the Worker’s Compensation Regulator (for the first time) raised the issue of whether the application had been made within the relevant time limit of 6 months under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).

The Commission found that the application had been made in the time prescribed.

The matter was subsequently heard before the Industrial Court of Queensland.

Issues in Dispute

There were two main issues considered by the Court, which were:

1. 1. For the purposes of the Act’s time limit, how should the expression ‘assessed by a doctor’ be interpreted?
   2. Whether Mr Toward was assessed as having an injury? And if so, when?

‘Injury Assessed by a doctor’

Relevant to Mr Toward’s circumstances is section 131 of the Act, which states that:

“An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises”.

An entitlement to compensation is defined in section 141 of the Act, which states that:

“(1) The entitlement to compensation for an injury arises on the day the worker is assessed by—

(a) a doctor; or

(b) if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

(c) if the injury is an oral injury and the worker attends a dentist—the dentist.

(2) However, any entitlement to weekly payment of compensation starts on—

(a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury—the day after the worker stops work because of the injury; or

(b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury— the day the doctor, nurse practitioner or dentist assesses the injury.”

In considering whether Mr Toward’s application was made within the relevant time limit, the Court considered the previous decision of WorkCover Queensland v Downey (decided in the Queensland Industrial Relations Commission), Hall P said (of the predecessor of section 141 of the Act) that:

“…it seems to me that the expression ‘assessed by a doctor’… must be taken to mean ‘assessed by a doctor as resulting in total or partial incapacity for work’.”

The Court took the view that Hall P erred in his interpretation of the expression ‘assessed by a doctor’ of section 141(1) of the Act, as Hall P’s interpretation would exclude other types of compensable injury (for example, death).

The Court held that ‘assessed by a doctor’ pursuant to section 141(1) of the Act should be interpreted as “assessed by a doctor as suffering a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to [an injury that may be compensated under the Act]”.

Was Mr Toward assessed as an injured worker? And if so, when?

Fortunately for Mr Toward, the evidence presented showed that there was no specific connection made by the medical practitioners between the “horse flipping over and the condition of Mr Toward at the time he was first seen” in 2005.

In this regard, the Court held that there must be some evaluation, conclusion or expression of opinion that “the injury arose out of the employment.”

The Court took the view that Mr Toward’s doctors only directed themselves to whether the injury arose out of the employment in 2013.

The evidence revealed that prior to 2013, each of the doctors were concerned with the treatment of Mr Toward, but had not directed their minds to the question of which physical injury arose out of employment.

Therefore, the Court held that Mr Toward’s claim was made within the relevant time limit under the Act.

Comments 

In our view, this decision is significant, as it provide new guidance on the definition of ‘assessed by a doctor’.

This decision may potentially give employees an opportunity to commence a claim pursuant to the Act in relation to an old injury, if no medical advice has previously been provided which considered whether the old injury arose out of employment.

This decision may “extend the time” for an employee’s statutory benefits claim.

For more information 

For an injured worker, read about our Brisbane Personal Injury Lawyers, our No Win No Fee PI services, our free initial PI consult or ask a personal injury question directly through our blog.

Psychiatric Injury and Employers Duty of Care

In personal injury matters, it is an accepted precedent that an employer does not breach a duty of care to take precautions against risk of injury to a worker unless:

• The risk was foreseeable (that is, a risk the employer knew or ought reasonably to have known);
• The risk was not insignificant; and
• In the circumstances, a reasonable person in the employer’s position would have taken the precautions.

In this article, we will be examining part (c), and what it means for an employer to take precautions to prevent a psychiatric injury. This is part of exercising employers duty of care.

Proving liability for psychiatric personal injury is typically more challenging than proving liability for physical injury. When it comes to psychiatric injury alleged to have been caused by the employer, there are several factors which will be taken into consideration when determining whether it was reasonable for an employer to take certain precautions to prevent the injury.

Risk assessments should be carried out, much in the same way that an employer would do for preventing physical injury. Where there is a foreseeable and significant risk to an employee, the employer should consider what precautionary measures, including training and procedures, need to be taken to both prevent and respond to a traumatic incident in the workplace.

If an employer fails to consider and implement precautionary measures, this will contribute to an assessment of whether they fulfilled their duty of care to prevent psychiatric injury. This is especially relevant in occupations that are highly stressful or emotive, such as social work, emergency care, counselling and youth work.

This issue was recently considered in the case of Greenway v The Corporation of the Synod of the Diocese of Brisbane (read the full case note here) in which the applicant, Ms Greenway, worked for Anglicare as a residential carer for young people. On the night of the incident, Ms Greenway (who was the only worker in the house at the time) was assaulted and threatened by a young person in her care. The young person became agitated after Ms Greenway refused to take him to visit a friend. In his anger, the young person verbally abused Ms Greenway, threw a phone at her, kicked in a window and then threatened her with a large shard of glass.

While the incident was occurring, Ms Greenway spoke with her team leader (Mr Mafulu) on the phone. Mr Mafulu became aware, through this phone call and hearing the commotion going on, that the young person was being aggressive. Mr Mafulu was also aware of the young person’s aggressive history. Ms Greenway ended the call by saying that she would call Mafulu back.

Ms Greenway was able to calm the young person down and de-escalate the situation, after which time she phoned Mr Mafulu and informed him of what had happened and how she had calmed the young person down. Mr Mafulu made the decision that he did not need to attend the house, as Ms Greenway had de-escalated the situation, and did not offer to send a second staff member to assist her; Ms Greenway did not at any time ask for help. Ms Greenway remained with the young person for the remainder of her shift which was throughout the entire night and until the afternoon of the following day.

Ms Greenway was not physically injured but sustained a psychological injury, partly because she was required to care for the young person alone, after the assault.

It was decided that Anglicare breached it’s duty of care by failing to take reasonable precautions, including:

1. Established guidelines for on call Team Leaders to support workers caring alone for young people with complex or extreme support needs; and
2. Trained on call Team Leaders in how to assess a worker’s welfare in the aftermath of a crisis, considering emotional and psychological issues as well as physical safety.

It was also decided that the breach of the employers duty of care caused the injury, in that by failing to take these reasonable precautions Anglicare had not properly trained Mr Mafulu in how to handle such circumstances. Consequently, Mr Mafulu provided an inadequate response to the situation which resulted in Ms Greenway’s ongoing exposure to the potential of further harm (through the night and into the following day) and contributed to her injury.

On this basis, damages were awarded to Ms Greenway in the amount of $454, 935.68.

This case highlights several factors that are relevant in determining whether an employer has discharged their duty of care to an employee, including the provision of adequate employee training in how to respond to a workplace incident, and the impact of employer actions leading up to and following a traumatic incident.

If an incident occurs in the workplace, an employer must be mindful of how their actions in dealing with the matter may cause, or prevent, further injury to an employee. It is likely that a failure to train staff in how to recognise and deal with a psychologically challenging event will be a breach of the duty of care, especially where

I threw my back out at work but I had a pre-existing back injury – will this impact my ability to make a claim?

If you are injured at work, you are usually entitled to make a statutory claim (workers compensation) through WorkCover Queensland.

The main grounds you need to satisfy are that you were in fact a “worker” and that your work was a significant contributing factor to your injury. If you threw your back out while carrying out your duties at work then you will usually satisfy these criteria, and a WorkCover claim should be filed if your ongoing ability to work has been impacted. However, in limited circumstances, having a pre-existing injury may impact your ability to claim for compensation or damages, particularly where your current symptoms are an aggravation of your pre-existing injury.

Before you commenced employment, particularly in laborious and physically demanding jobs, you may have been requested to disclose all pre-existing injuries or medical conditions to your prospective employer that could reasonably be expected to be aggravated by performing the employment related duties. If you knowingly supply false or misleading information at this time, then you will not be entitled to compensation or damages under the Workers Compensation and Rehabilitation Act 2003 (the Act), for any accident that aggravates the non-disclosed pre-existing injury or condition.

If your prospective employer hired you before requiring the disclosure of your pre-existing back injury (or any other relevant injury or condition), then you will still be entitled to claim for compensation.

Aside from the situation where you failed to disclose your pre-existing back injury, you will be entitled to make a workers’ compensation claim for any injury where work was a significant contributing factor, including injuries that were caused by the negligence of an employer, co-workers or any third parties that you deal with. This includes aggravation of a pre-existing back injury. Only after first making a statutory claim (through workers compensation), will you then be eligible to make a common law claim. You can find out more information on this process here.

If you are ineligible to lodge a statutory claim or common law claim because you did not disclose your pre-existing injuries, then you do still have options including Income Protection payments through your superannuation provider. Or, if the injury has developed into a disability that will prevent you from working ever again, you could consider making a Total and Permanent Disability Claim, again through your superannuation provider. Both of these types of claims do not require another party to be “at fault” for the injury, but can still provide you with the financial assistance you need to manage and overcome the difficulty of suffering from illness or injury.

If you have had a workplace accident and would like advice on lodging your WorkCover statutory compensation claim or common law claim, or you are unsure about your eligibility where you have a pre-existing back injury, contact our offices for a free consultation with one of our Brisbane personal injury lawyers on (07) 3252 0011, or through our general enquiries page.