Workers compensation case study (Vic)

This case study is designed to give you an idea as to how a workers compensation claim in Victoria could progress.

Keep in mind that the case study is an example for illustrative purposes. Every case has its own unique set of facts, and just because your case is similar to the one in this case study, does not mean your case will progress the same way and have the same outcome. Each case is different and a workers compensation claim can involve many different twists and turns.

Jim

Jim was employed as a production worker in a facility that would process different boxed foods.

Jim‘s primary role was to work in an area of the facility that had a conveyor belt. He was responsible for loading boxed items onto the conveyor belt after unloading them from a pallet. He was then required to ensure that the boxes flowed smoothly along the conveyor belt, onto another part of the facility.

He was employed on a permanent part time basis, working approximately 32 hours per week.

He’d been with the company for approximately eight years when the injury occurred.

The injury happened on a particular day when he was required to lean over the conveyor belt as it was operating and push and rearrange boxes that were getting snagged at a particular part of the conveyor belt.

The reason the boxes were getting snagged was because an automatic sensor which was responsible for scanning the boxes, was malfunctioning and had been for some time.

This meant that it wasn’t picking up boxes and as a consequence they were not flowing as they should down the conveyor belt.

In the process of doing this over a number of hours, he began to feel pain in his right shoulder.

Initially, he thought he might have pulled a muscle or was just suffering from a minor injury of some sort, so he kept working. He finished his shift off after working few more hours after suffering the injury.

At home after work, Jim was in quite a bit pain. He took some Panadol and took things easy for the night.

In the morning, Jim’s shoulder was feeling worse. He was in more pain than when he had gone to bed. He didn’t feel as though he could work that day so he called up his manager and told him that he suffered shoulder injury at work the previous day and that he was a bit sore and was going take the day off.

Jim told his supervisor that he hadn’t recorded the injury in the injury register book because he thought it was only a minor injury that would go away. He told his supervisor that he would record the injury when he returned to work, hopefully the following day.

Jim took things easy that day. He took some more Panadol and tried to avoid aggravating the shoulder.

Come the next day and he was scheduled to work and not wanting to let the company down he went into work and tried to push through performing his work duties but was unable to work past lunch time due to pain. He told his supervisor about his shoulder issue and then went home.

Seeing a doctor

He saw a GP for the first time about the injury that afternoon. He told the GP about the injury that occurred at work and how it happened.

The GP advised him to take two weeks off work and gave him an ordinary medical certificate (rather than a certificate of capacity for WorkCover purposes).

Jim provided the medical certificate to his employer and took the two weeks off work.

Over this week he also obtained some physiotherapy treatment.

After two weeks off work, it became apparent to Jim that his shoulder was not getting any better and in fact was getting worse. As a consequence he went back to see his general practitioner who upon Jim’s request, provided him with a WorkCover certificate of capacity.

Lodging a claim

Jim presented this certificate of capacity to his employer with a completed WorkCover claim form.

Jim decided to lodge the WorkCover claim at this point because he believed his injury was not likely to get better quickly, and would need treatment and he would likely require a period of time off work. 

His employer sent off the WorkCover claim form to their WorkCover Insurer.

Claim investigated

The WorkCover Insurer contacted Jim to let him know that they were processing his claim.

In order to determine the claim, they organised an assessment for him to be medically assessed by an IME doctor.

This medical assessment took place approximately two weeks after the claim was lodged.

During this time, Jim was off work and the certificate of capacity that he obtained said that he had no capacity for any work at this point in time.

The doctor that he saw was organised by the insurance company to assess him and report back to them.

Claim rejected

Based on the report from the doctor, the insurance company decided to reject his WorkCover claim.

The reason that they rejected the claim was because Jim had told the doctor that he had previous shoulder problems from time to time and as a consequence, the WorkCover insurer determined that the effects of that shoulder injury from work had resolved and he was left with effects of the pre existing shoulder problems.

By way of background, Jim did have a shoulder pain from time to time for which he had obtained physiotherapy treatment. However, the shoulder pain never prevented him from working and he never taken any time off work.

The cause of this previous shoulder pain is uncertain but Jim suspected it may have been due to the repetitive nature of his work over a number of years.

Going to conciliation

Disagreeing with the insurers decision to reject his claim, Jim lodged a request for conciliation, initiating the conciliation process.

By this time, Jim had organised a lawyer to assist him with his WorkCover claim. As such, the lawyer organised the relevant medical material that he needed to contest the decision of the insurance company.

The matter reached conciliation after about four weeks.

Unfortunately, the insurer was not willing to withdraw their decision at conciliation. At most, they offered to resolve the matter on the basis that they pay him a limited period of weekly payments and medical expenses to date.

If he was to accept this offer, then he would not be entitled to weekly payments or medical expenses moving forward.

Given the uncertain nature of his injury at this point in time, Jim understandably was very hesitant to accept any limited offer. He did not know this point in time how long he may need off work and was unsure as to what his treatment needs may be for this injury.

Going to the medical panel

As such, the matter did not resolve at conciliation and a referral to the medical panel was obtained.

Jim had other options in terms of conciliation outcomes. He could have, for example obtain a certificate of genuine dispute which would enable him to refer the matter to the Magistrates Court for determination.

However, knowing that it can sometimes take six months or more for matters to reach the Magistrates Court, Jim elected instead to go to the Medical panel.

Jim attended the panel approximately six weeks after the Conciliation.

Prior to attending the medical panel, further medical material was obtained addressing the shoulder injury that he sustained at work, as well as addressing his previous shoulder injury.

He also had an MRI scan which could be compared to a previous MRI scan that he had had a few years ago.

The medical panel assessed Jim and disagreed with the insurers decision to reject the claim, therefore providing an opinion which resulted in the decision being overturned.

Claim accepted

Essentially, the panel concluded that Jim did suffer an injury to his shoulder at work in the way that he said he did.

As a consequence of the medical panel‘s decision, Jim had his WorkCover claim accepted.

He was back paid Income replacement benefits from the start of the claim (as if his claim was initially accepted). He remained off work and so was entitled to weekly payments paid to him on an ongoing basis.

He was also reimbursed his medical expenses.

Surgery to his shoulder

Because the insurer was responsible for paying his medical expenses, he was able to get in to see a specialist without having to wait on the public list.

He saw a specialist who suggested that he may benefit from shoulder surgery.

Jim was initially hesitant to undergo surgery but after a number of months of his shoulder not improving, he agreed.

Approximately eight months after suffering the injury to his shoulder Jim had an operation to repair the tear in his shoulder.

The WorkCover insurer paid for the cost of the surgery as well as the rehabilitation costs.

Jim continued to remain off work and obtain weekly payments as he recovered.

Throughout the entire period, his general practitioner was providing him with certificates of capacity certifying him not fit for any duties.

Despite this, he was still required to have regular discussions with the rehabilitation provider that had been organised by the WorkCover insurer to assist him to return to work, if possible.

Return to work attempt

After a number of months post surgery, it was determined that he could return to work doing office work for a few hours a day which would gradually be increased over a number of weeks. The administrative role did not include any heavy lifting. He was able to cope doing this work without too many issues.

Eventually, his specialist suggested that he could try returning to his pre injury role but to limit his lifting capacity to no more than 10 kg. After trying this for awhile, it became apparent that it was not feasible given the nature of his work.

Termination of employment

Management from the company eventually organised a meeting with him to discuss his future with the company.

They sent a letter to his general practitioner asking for their comment on his capacity to perform his pre-injury role. Both doctors concluded that he did not and would not have a capacity to perform his pre-injury role in an unrestricted manner.

As a consequence of this, his employer terminated his employment which they were allowed to do under the law at this point in time.

Despite the fact that his employment was terminated, he was still entitled to be paid weekly payments of compensation for up to 130 weeks.

Jim reached a point where his shoulder injury had improved but was still causing him pain and restriction.

His specialist concluded that his shoulder injury was not likely to improve or get worse, that is, it has stabilised. He was advised that no further surgery was required at this point in time.

Pursuing an impairment claim

He then lodged an impairment benefit lump sum claim. This is a lump sum claim for permanent impairment.

Shortly after the application was lodged, the insurance company organised an appointment for him to be assessed by an independent medical examiner.

This medical examiner was different to the one that he saw early on in the life of his claim, when his claim was being determined.

This independent medical examiner assessed his shoulder injury and put a percentage figure on it of 12%. This figure entitled Jim to an payment benefit amount of $28,000. Jim accepted this offer.

All up, the impairment claim took approximately three months to resolve from when the application was lodged.

Jim had spent some time looking for and applying for jobs but the types of jobs that he was now able to do given his injury were limited. As a consequence he had not had any success in finding a new job.

His doctor was continuing to provide him with certificates of capacity which were saying that he had a capacity for some employment but with a restriction on what he could lift and instruction to avoid any movements that may aggravate his shoulder condition.

He was working with the occupational rehab provider organised by the insurance company to find him a new job but he had not been successful in doing so.

Pursuing a common law claim

Obtaining a serious injury certificate

At this point in time, Jim lodged a serious injury application – being the first step in obtaining common law damages (another lump sum claim).

Once the application was sent off to WorkSafe, they forwarded the application to lawyers who had four months in which to make a decision.

They had to decide whether Jim had a serious injury or not.

He did not get assessed as having a 30% or more whole person impairment for his impairment lump sum claim so the decision was based on the narrative test. That is, the lawyers needed to consider the impact the injury has on Jim’s life, and will have on Jim’s life.

Jim obviously was not able to work in the same unrestricted way that he was working prior to suffering the injury.

He was also an avid fisherman, often fishing from the beach and rivers, and sometimes from a boat. He had restrictions in his ability to participate in fishing due to pain, particularly sea fishing and fishing from a boat.

He found driving in a car difficult for long periods of time due to shoulder pain.

He described waking up often during the night in pain and struggling to get back to sleep. Since suffering the injury he was required to take pain killing medication on a regular basis.

Prior to suffering the injury, Jim was active in terms of maintenance and handyman tasks around the home. In fact, he had recently not long before suffering the injury renovated a room in his home which included building a plaster wall.

As a consequence of injury he was no longer able to do work around the home to the same extent.

Jim had a large garden around his home with a number of trees. Before suffering the injury, he was responsible for pruning and maintaining the trees and garden. As a consequence of his shoulder injury, he now had to pay someone to do this for him.

After considering the impact that the injury had on Jim’s life, the solicitors acting for WorkSafe accepted that he had a serious injury and therefore provided him with a serious injury certificate confirming this.

Going to a settlement conference

Because he had obtained a serious injury certificate, a conference was then organised between the solicitors acting for WorkSafe and Jim’s solicitors.

The aim of the conference was to see whether the matter could be settled.

The settlement conference took place approximately three weeks after Jim was granted a serious injury certificate.

The settlement conference went for a couple of hours but unfortunately the matter failed to settle as the parties could not come to an agreement as to the appropriate settlement figure.

The main sticking point was in relation to the payment of economic loss damages.

Jim was currently 53 years of age and the lawyers acting for WorkSafe were of the opinion that he may be able to get back to some work in the near future and therefore was not completely restricted in terms of his work capacity.

Jim’s lawyers, based on the medical material that existed, felt that he would likely not return to work at all.

Matter not resolving at settlement conference

Because the matter was unable to settle at conference, by law the parties were required to make an offer to one another. The defendant made an offer in writing shortly after the conference which was rejected by Jim’s solicitors.

Jim’s solicitors then made a counter offer which was rejected by the lawyers acting for WorkSafe

Matter resolving by way of further negotiation

As the matter was unable to be negotiated between the parties, Jim’s solicitors then issued a writ which is a formal court document that sets the matter down for hearing.

The matter was then set down for hearing in the County Court in approximately six months time.

In the meantime, further information was obtained in relation to Jim’s work capacity addressing how long he would be off work for, what types of work he could do, what he could be expected to earn etc.

After some further negotiations between the parties, the matter resolved by way of negotiation with Jim being paid $525,000 being for both pain and suffering and loss of earnings damages. 

Jim continued to have his medical expenses paid for by the WorkCover insurer.