The focus of this article is on a workers compensation claim which was referred to Turks and which recently became the subject of litigation in the PIC.

Background

Liability was accepted from the outset for the worker’s claim of injuries to the low back and right shoulder as a result of a slip and fall in 2014.

In 2020, Turks was engaged to act after the worker lodged a claim for:

• left shoulder and left hip injuries in 2014;
• consequential neck, left shoulder and right knee conditions; and
• low back, neck and right knee surgery.

The claim lodged by the worker in 2020 was based on the views of her treating orthopaedic surgeon and supported also by her NTD.

Turks arranged for the worker to be examined by an IME (orthopaedic surgeon) who was provided with a detailed referral. The referral attached material comprising a majority of the medical evidence accumulated over the years including clinical records - most notably records from the worker’s GP dating back to 2012 (so before the subject fall).

In his report, the IME meticulously summarised the medical evidence provided to him. He also provided a detailed account of the results of his examination of the worker. Ultimately, he concluded there was no convincing evidence that the worker injured her left shoulder and left hip in 2014 and that the worker’s claimed left shoulder and left hip issues were most likely constitutional in nature.

Significantly, the IME noted that his review of the worker’s medical records revealed that she did not complain to her NTD about her left shoulder and left hip issues until early 2020. With respect to the worker’s claim of consequential neck, left shoulder and right knee conditions, the IME disagreed with the opinion of the worker’s treating surgeon and highlighted some flaws in his reasoning. The IME also concluded that the worker’s claimed neck, left shoulder and right knee issues were quite normal for a worker in her age-bracket.

The IME disagreed with any suggestion that the worker required neck or right knee surgery and, if such surgery was warranted, there was no sound support for that surgery being reasonably necessary as a result of the worker’s fall in 2014. Significantly, the IME concluded that he could see an argument for back surgery being required as a result of the injury however, he ultimately did not consider that surgery to be reasonably necessary because he was not convinced it would provide the worker with any real benefit.

The insurer issued the worker with a s78 notice that:

• disputed the claim of injuries to the left shoulder and left hip pursuant to s4 and s9A of the Workers Compensation Act 1987 (the 1987 Act). The notice also raised s254 and s261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the basis that notice of injury was not given to the employer as soon as possible after the injury (s254) and on the basis that the claim was not made within the required period (s261);
• disputed the worker’s claim of neck, left shoulder and right knee conditions consequential to the fall in 2014; and
• disputed the worker’s claim for low back, neck and right knee surgery pursuant to s59 & s60 of the 1987 Act.

Litigation commenced by the worker in the PIC

In early 2022, Turks was engaged to act for the employer in proceedings commenced by the worker. The ARD pleaded injuries to the low back and right shoulder (both accepted injuries) and the left shoulder and left hip (both disputed) and consequential neck, left shoulder and right knee conditions. The worker claimed low back, neck and right knee surgery. The ARD also included a claim of injuries to the neck, back and both knees due to the nature and conditions of employment. In its Reply, Turks opposed the nature and conditions claim on the basis that the worker had not lodged that claim prior to commencing the proceedings. Therefore, the PIC had no jurisdiction to consider it (s289 & s289A of the 1998 Act).

Because the ARD included a worker-commissioned report from a medico-legal expert (an orthopaedic surgeon) that the insurer had not seen previously, Turks requested a supplementary report from the IME that had been engaged in 2020. In his supplementary report, after analysing the worker commissioned medico-legal report, the IME maintained his earlier views and provided a detailed explanation for doing so. Of significance, the IME highlighted that the worker commissioned medico-legal expert did not appear to have been provided with any of the worker’s medical records from her GP. He also provided support to dispute the worker’s claim of injuries due to the nature and conditions of employment.

The insurer had reasonable prospects of success with regards to all disputed issues given the strength of the evidence obtained in response to the claim. However, the one disputed issue which was at greater risk of being overturned was the proposed back surgery. Accordingly, an offer was made to accept liability for the proposed surgery, with the worker in turn to agree to awards in favour of the employer/respondent in respect of the other issues in dispute.

This offer was ultimately accepted by the worker, and involved awards for the respondent with respect to the claims of:

• injuries to left shoulder and left hip in 2014;
• consequential neck, left shoulder and right knee conditions; and
• injuries to the neck, back and both knees due to the nature and conditions of employment.

Key Takeaways

This matter highlights the benefits of:

• thorough preparation;
• securing the support of an IME that is prepared to provide timely, detailed and well-reasoned reports;
• preparing a matter for a full contest of the disputed issues; and
• having an open mind about a settlement keeping in mind that it is sometimes appropriate to contest issues but there are other instances where a settlement is the best way forward where both parties are guaranteed a certain outcome and avoid the uncertainty that can flow from a full determination.