Employer argues worker provided 'misleading histories' to doctors
A County Court in Victoria recently dealt with a case involving a worker who sought leave to bring a common law proceeding for pain and suffering and pecuniary loss damages.
The worker, employed as a cleaner and laundry worker, claimed an injury to her back, specifically to the lumbar spine, the intervertebral discs, and associated musculoligamentous structures, which she suffered in the course of her employment and as a result of specific incidents during her employment.
The case revolved around the worker's ability to establish that she had an injury that was a permanent serious impairment or loss of a body function, and whether she had met the legislative test set out in the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA).
The dispute centred on the worker's retained capacity for suitable employment and whether she was capable of earning at least 60 percent of her pre-injury earnings.
According to records, the worker had completed the equivalent of Year 12 and had worked in various retail and hospitality jobs before moving to Australia in 1998.
In 2014, she began working for her employer as a cleaner and laundry worker. Her duties included mopping, dusting, cleaning toilets, sinks, and showers, vacuuming carpets, emptying bins, and handling bedding, clothing, and towels.
Throughout her employment, the worker experienced several incidents of back pain, which she attributed to her work duties. In November 2014, she attended her general practitioner for lower back pain after lifting a bucket of water.
She continued to experience back pain and sought medical attention in January 2016 and December 2016. In 2017 and 2018, she also experienced shoulder pain, which required time off work and physiotherapy.
In June 2019, the worker submitted a claim for compensation and remained off work until August 2019. She returned to light duties but found it challenging to cope with the demands of her work and the criticism from her supervisors.
The worker resigned from her employment in December 2020, citing her inability to cope with the stress and her desire to recover from her injury.
The worker received medication and physiotherapy for her back pain but did not undergo any interventional treatment or surgery.
Several medical experts, including her general practitioner, neurosurgeons, and occupational physicians, assessed her condition and provided opinions on her work capacity and suitable employment options.
The medical experts generally agreed that the worker had suffered an aggravation of lumbar spondylosis or degeneration of her lumbar spine, which was contributed to by her work duties.
However, there was no consensus among the experts regarding the extent of her work capacity and the suitability of various employment options.
The employer challenged the worker's current work capacity and her credit and reliability. They contended that the worker was not reliable, and the court could not accept her account of her current work capacity.
The employer pointed out several issues, including the worker's operation of a beauty business while receiving weekly payments from WorkCover and alleged misleading histories provided to medical experts.
The worker maintained that she had a current work capacity of about three hours a week, providing beauty and hair services, and that her skills were not transferable to a commercial setting.
She argued that the home-based work, at the rate and pace she could set, was suitable employment for her.
The court carefully considered the evidence presented by both parties, including the worker's medical records, expert opinions, and the worker's own testimony. It noted that while there were some discrepancies in the worker's evidence, they did not significantly impugn her credibility:
“I do not find her accounting discrepancies to significantly impugn her credit, nor am I persuaded that they demonstrate that she is likely to have engaged in significantly more work than she says, or has recorded,” the decision said.
After carefully analysing the evidence and considering the parties' arguments, the court found that the worker had established that she had a loss of earning capacity of at least 40% of her pre-injury earnings.
The court was not persuaded by the employer's arguments regarding the worker's credit and reliability, stating:
"I do not consider her credit to have been significantly impugned and generally accept her as a credible witness. While her evidence is somewhat unreliable due to the passage of time and her imperfect memory, I do not consider that on key aspects, such as her pain, restrictions and capacity for work, her evidence ought to be rejected."
The court also found that the worker's capacity for suitable employment was limited, and that she would not be employable in a commercial salon setting due to her slow work and the modifications required.
The decision said:
"I accept her evidence that working three hours a week causes back flare-ups and pain. Any additional working capacity she has is likely to be modest, in the order of around six hours a week, as opined by [her doctor]."
Ultimately, the court concluded that the worker had established that she had a serious injury and a loss of earning capacity that met the test set out in the WIRCA, explaining:
"Accordingly, [the worker] has leave to commence common law proceedings for damages for pain and suffering and pecuniary loss."
The decision highlighted the importance of carefully assessing the evidence and considering the individual circumstances of each case when determining a worker's entitlements to compensation and damages for work-related injuries.
