Elizabeth O’Connor, a solicitor at Bruce Thomas Lawyers (BTL) and previous member of the special investigations unit at a workers’ compensation insurer, recently had success assisting an employer to intervene in an appeal to the Queensland Industrial Relations Commission (QIRC). In this article she shares her insight in dealing with cases where there is doubt that the Claimant has actually sustained an injury.
The statutory workers compensation process requires an injured worker to prove that they have an ‘injury’ as defined under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) when lodging an Application for Compensation. This requirement also extends to ‘common law only’ injuries claimed in a Notice of Claim for Damages.
The WCRA and WCR Regulation provide that the onus of proof of an injury lies with the worker. Sufficient evidence must be provided to the decision maker so that person is satisfied on the balance of probabilities that there is sufficient proof of the injury and its cause.
Decisions of the appeal bodies (Industrial Magistrates Court, Queensland Industrial Relations Commission and Industrial Court) provide guidance about the threshold of that proof.
At BTL we regularly advise on ‘injury’ decisions when assisting our insurer clients with both their statutory claims defences of common law only claims. We are experienced in ensuring that decisions are based on sound evidence and are framed logically to allow for the scrutiny of such decisions through the various levels of the appeal process.
We have recently assisted an employer to successfully intervene in an appeal of an ‘injury’ decision to the Queensland Industrial Relations Commission.
Bulman v Rockhampton Regional Council.
The Claimant lodged a Notice of Claim for Damages for a back injury sustained on 27 July 2006. The Claimant alleged that he sustained this injury while lifting a large grader tyre and that he reported his injury to his general practitioner when he attended the doctor on that day.
The evidence we gathered contradicted the Claimant’s statements about the reporting of the alleged injury to his doctor and revealed a long history of back problems. The clinical notes from the day of injury whilst confirming his attendance, did not record any mention of a back injury. The notes in fact revealed a delay in reporting the alleged injury in the workplace.
The Commission found that there was insufficient evidence that any injury was sustained on 27 July 2006. It was found that, at best, the Claimant may have sustained some pain or discomfort in the back on that day due to lifting a tyre. The Claimant’s long prior history of back pain was relevant as was the Claimant’s failure to report the alleged injury to his general practitioner when he attended an appointment after his shift on the day of injury.
The Commission also gave weight to the many inconsistencies in documents that the Claimant had created about his injuries including incident reports, subsequent Applications for Compensation and the Notice of Claim.
The decision highlights the importance of the statements made in the Notice of Claim being tested against the facts that emerge from the evidence gathered when investigating a claim. Simply because an injury could have arisen from the alleged mechanism of injury, it does not necessarily follow that an injury is acceptable if there is sufficient contradictory evidence.
In Bulman, the Commission found that there was insufficient evidence that the Claimant had sustained an injury. If, when tested, statements about injuries made by a Claimant are not accurate, a Claimant should bear the negative consequences as was the case here.
Thoughts on the case and in dealing with claims where the injury itself is in doubt
This type of case demonstrates the importance of obtaining good factual information and supporting documents to test the statements made by Claimants in their Notices of Claim. Preventing a claim that is without merit from progressing past the threshold stages can result in considerable savings because a subsequent common law claim cannot be pursued.
We have previously highlighted the importance of thorough factual investigations. We pointed out the importance of proper investigation of claims due to the heavy onus on employers in respect of defending claims for breach of statutory duty. While the recent changes to the Workplace Health and Safety Act have relieved some of this evidential burden from the employer; comprehensive, targeted investigations remain crucial to many aspects of these claims, including the threshold question of ‘injury’.
Employers also have a role to play in terms of quickly gathering information through formal and informal channels. On one view they can be seen as large corporate entities but on another they are also large collections of people who often know claimants on several levels eg as co-workers, neighbours, fellow club members or colleagues. Leads from this “on the ground” intelligence can be invaluable in establishing quickly whether a claimant is genuine or not.
If you have any thoughts, comments or queries please contact Elizabeth O’Connor at Bruce Thomas Lawyers. eo(at)btlawyers.com.au or 07 3211 2233.
Liability limited by a scheme approved under professional standards legislationTags: Elizabeth