Worker’s impairment highlights the need for pre-employment assessments

Risk Matters - Spring 2023

An outside worker in his early 40s sustained a significant workplace injury to his lower back at a local government owned/ operated facility while trying to assist a ratepayer who had attended the facility.

As a result, the worker underwent major back surgeries resulting in a permanent impairment and an inability to return to work and undertake his pre-injury or any alternative role.

LGIS findings

Once the claim was lodged LGIS investigated the situation; it was found that the worker had a pre-existing medical history.

The worker also had psychological issues resulting from relationship challenges and substance abuse. Although these issues were present prior to the work accident, they were heightened during
the claim journey.

It should be noted that workers’ compensation is a no fault system, and employer perception of liability plays no part in the interpretation of the ‘Workers’ Compensation Act (WA).

A pre-employment medical was not done prior to the worker’s employment. A pre-employment medical can be a useful tool in assessing a worker’s fitness for work before starting a new role.

LGIS discovered there was only limited information gathering by the employer at the time of injury, including not taking photographs of the equipment involved, which belonged to a third party. This was a critical piece of evidence and without it, lessened the employer’s ability to defend the matter.

At the date of settlement, this evidence was not available nor was the third party willing to cooperate in the investigation or participate in any legal proceedings.

Although some records were kept by the employer, there was a gap in the record keeping process and communication to workers. In this instance, there was lack of written instructions and policies visible to both workers and ratepayers where the incident occurred.

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The worker exhausted his full entitlement to weekly compensation and underwent two invasive surgical procedures. Those procedures were not completely successful and caused the worker physical complications which also impacted his pre-existing psychological issues and consequently, his mental wellbeing.

The worker suffered a whole person impairment sufficient to make a common law claim for damages against his employer.

The claim was successfully resolved at a pre-trial conference in the District Court of WA.

What have we learnt?

  • Workers’ compensation is a ‘no fault’ system and an employer takes a worker as they find them – no blame approach.
  • Pre-employment medicals are a useful tool to manage identified risks so it is best to utilise them during the hiring process (especially for a physically intensive job role).
  • Policies and procedures should be documented and records maintained confirming they are understood by all workers (and ratepayers, if applicable).
  • Signage should be clearly visible on sites where patronage and operation of a facility accessible to the public may place ratepayers and/or workers at risk.
  • Training attendance registers should be maintained. But where possible, the content of training courses should be kept as they offer an insight into what exactly took place at the training course. In this case, LGIS had provided some in-house training to the employer’s outside workforce and there were records of the presentation slides that were used and photographs of the trainer demonstrating certain techniques to the audience. This was a valuable evidence.
  • All evidence should be gathered as soon as practicable following a workplace incident, particularly where a significant injury has occurred and medical assistance is required. This includes the evidence of witnesses and the production of relevant documents. Given that the length of time between a work accident occurring and a claim being finalised can be years rather than months, individual memories will fade and people can leave the organisation and move up. But evidence that has been documented in writing does not fade with time and memories can be refreshed from documentary evidence if that evidence has been kept in a place or format where it can easily be retrieved.
  • The interaction between a worker suffering serious physical injury and the impact of that injury on a worker’s mental wellbeing should not be underestimated. Maintaining contact and supporting a worker during the claim process can have benefits.

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