Claim fails: previous injury not disclosed

Cases

Claim fails: previous injury not disclosed

A worker who didn't disclose a previous neck injury has been unable to prove another neck injury arose at his new workplace.

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A worker who didn't disclose a previous neck injury has been unable to prove another neck injury arose at his new workplace.

He also had no excuse for late reporting of the injury.

Facts and background


An electrician undertaking cable installation at a client site in December 2014 struck his head on a bundle of cables while walking through a dark tunnel. His helmet flew off and he fell to the ground. A co-worker helped him up. He was dazed but continued working. He remained affected by a sore neck and headaches.

In April 2015, the electrician saw a doctor for the first time since the incident. He reported loss of feeling and tingling in the right side of his face, his right arm and the fingers of his right hand. He had an MRI scan and was referred to a neurosurgeon. He had surgery on 3 December 2015 because of a diagnosed right C4 and C5 nerve root compression. He did not return to work but accepted a redundancy in July 2016.

The law


The electrician submitted a workers compensation claim in October 2016 according to the Workers Compensation Act 1987 (NSW). He claimed permanent impairment compensation in respect of his neck injury and payment of the cost of the surgery. He thought he had mentioned the incident to his superior later in the crib room, but he had not lodged a claim at the time because he said the employer had discouraged the practice.

The employer conceded that the incident had occurred but denied that the electrician had sustained the injury. It also defended the claim because he had failed to give notice of his injury within the time limit in s254 of the Workplace Injury Management and Workers Compensation Act 1998.

The issues


The matter to be determined by the Workers Compensation Commission of NSW was whether the electrician had injured his neck in December 2014 and whether he had given notice as required by the 1998 Act.

Arguments


The electrician submitted that he had not reported the 2014 injury because the employer discouraged reporting. He had also not been aware of the extent of the injury and had hoped to recover. When appointed, he had also denied any previous injuries in order to improve his chances of getting the job.

The employer’s safety manager reported that the electrician had commenced employment in September 2010 and undergone induction training, which had covered the compulsory requirement to report workplace injuries and incidents. The first time the employer heard about the injury was from his lawyers on 7 November 2016.

Considerations


Medical evidence revealed that the electrician had been treated for significant injuries to his upper extremities and cervical spine from February 2007 while working for a previous employer. He had even been assessed to have a 12% impairment, including 5% in respect of the cervical spine.

When applying for work again, he had answered ‘no’ to questions in the application form about whether he had suffered any ailment or disability that could affect his performance. When completing work at the client site where he had worked in December 2014, he had signed off agreeing that he had ‘reported all near miss events, incidents and injuries to my supervisor prior to leaving site’.

The medical opinions from the period after the December 2014 incident included a degenerative cervical spine condition. In November 2017, a neurosurgeon, who had been told the electrician had intermittent neck pain before December 2014 and severe discomfort after the incident, diagnosed ‘quite substantial cervical spondylosis with significant resolved right C4, C5 and C6 radiculopathy’.

Another neurosurgeon, who had been given an incomplete history, found that employment must have been a substantial contributing factor because of the lack of previous neck pain. When enlightened, he updated his report to state that the need for surgery had arisen from exacerbation of pre-existing degenerative disease, ‘the cause of which was unclear’.

Decision


Arbitrator McDonald said the only uncontradicted evidence about the incident in December 2014 was that the electrician had struck his head when working in a tunnel. However, based on the detailed evidence, she could not be satisfied that it had been the main contributing factor to the aggravation of his neck problem and that it had caused the pathological change that had made surgery necessary.

In addition, the arbitrator could not be satisfied that any of the special circumstances, as provided in s254 of the 1998 Act, that would allow giving late notice of injury applied in this case. The electrician had not established that he had a reasonable cause for failing to give notice in time.

Arbitrator McDonald made an award in favour of the employer.

The bottom line: The worker in this case discovered he should not have denied having sustained neck injuries while working for a previous employer because medical records were obtained which disproved his current claim.

Read the judgment


Nell v ARA Electrical Services Pty Ltd [2018] NSWWCC 185 (2 August 2018)
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