Council fails to convince judges to overrule worker injury case

Published 22 Jun 2015

A man has successfully defended his right to benefits following a workers compensation case that ended up in the New South Wales Court of Appeal.

The employee suffered bilateral hernias in his groin when lifting stormwater grates onto the back of a lorry. The injury, which occurred in 2008, resulted in him taking time off work until January 2010, before he fully retired in April that year.

Upon his initial return to the workplace, the man was given a new role as part of an injury management plan. He first worked in a nursery but was then moved to a cleaning job.

The new role involved lifting bags and walking on uneven ground, both of which he claimed aggravated his existing injury. On the advice of his doctor, the respondent retired due to a permanent disability.

Employer refuses compensation

The man worked for a local council, which rejected his compensation claim on the basis that he had failed to comply with the proposed injury management plan. Moreover, the organisation said the respondent did not give notice regarding his accident within the correct time frame according to Section 57 of the Workplace Injury Management & Workers Compensation Act 1998.

The case first went to arbitration, where the arbitrator ruled in favour of the man. However, the council appealed the decision at the NSW Workers Compensation Commission – and was again overruled.

According to court documents, the grounds on which the council appealed included the failure of the arbitrator to consider whether the duties given to the employee were “suitable” for his injury.

Another issue related to whether the council had adequately informed the man of its intention to dispute his compensation. The arbitrator ruled the employer neglected to do so.

Permanent injury claims

In its latest appeal, the council argued the deputy president of the commission erred in several areas of his decision-making. The organisation said a letter sent to the respondent clearly showed the council’s intent to withhold compensation due to the man not telling them of his injury within the correct timeframe.

However, the appellate judges claimed the letter was a ‘catch-all’ document that covered almost all possible reasons to reject compensation. In fact, some of the explanations listed didn’t apply to this particular case. An appeal against the deputy president’s procedural fairness was also rejected.

As a self-insurer, the organisation must now solely bear the compensation costs and legal fees of the employee. The man could also be eligible for permanent disability benefits through a separate superannuation claim.

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