Lack of Medical Certification May Not Necessarily Defeat a Weekly Payments Claim by TurksLegal

Lack of Medical Certification May Not Necessarily Defeat a Weekly Payments Claim By Craig Bell | March 2009 Area of Expertise | Workers Compensation

Summary While insurers require WorkCover medical certificates to manage weekly compensation claims, the Workers Compensation Commission has confirmed that lack of certification will not necessarily defeat the claim: Doyle v Q Catering Riverside Pty Ltd (formerly known as Caterair Airport Services (Sydney) Pty Ltd) (2009) NSWWCCPD 14.

Who Does This Impact? Workers and insurers.

What Action Should Be Taken? Insurers should be aware that the WCC may interpret the lack of medical certiﬁcation differently to how an insurer would under the WorkCover Guidelines.

Facts – Doyle v Q Catering Riverside The worker who was born in 1952 suffered a right shoulder injury on September 2001 and went off work. The worker was diagnosed with a tear of the supraspinatus tendon. Due to financial pressure and also pressure from her workmates, she returned to normal duties even though she was still taking pain killers and was being treated by a specialist. The worker continued her normal duties until 28 January 2003 when she again injured her right shoulder at work and became incapacitated for work. Investigations indicated that her pathology remained unaltered. The worker declined surgery. On 24 April 2003, the worker was certified fit for pre-injury duties. On 10 September 2004 the worker suffered injury to her right ankle and heel when a falling cart struck the back of her right heel. The worker returned to normal duties after a few months off work. In March 2007, her symptoms were increasing and her employer sent her to see a GP. There was no time loss from work at that time. On 7 September 2007, a trolley struck the worker’s right leg and lower back but she took no time off work. Shortly after, the worker was finding work difficult and, after discussions with the Human Resources Manager, she was given the option of resigning or taking annual leave to give her time to recover. The worker chose annual leave, however, prior to taking annual leave, she was required by the employer to obtain a ‘final certificate’ because final clearance was required prior to any annual leave benefits being paid. The worker therefore attended a doctor appointed by the employer and that doctor certified the worker fit for pre-injury duties on 13 September 2007. (Later, during proceedings in the Workers Compensation Commission (WCC), the worker strongly disagreed with the certificate.) Ultimately, the worker decided that she could not return to work and resigned on 24 September 2007. There was no explanation in the resignation letter that she was resigning because of her injury, although she stated during WCC proceedings that she assumed that it was well known she resigned because of her injuries. In summary therefore, the worker had not presented a medical certificate regarding the right shoulder since early 2003, and was clearly certified fit when she resigned.

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Lack of Medical Certification May Not Necessarily Defeat a Weekly Payments Claim by Craig Bell

It did not take long for the worker to seek the advice of solicitors: she provided a statement dated 5 November 2007 and saw Dr Bodel, orthopaedic surgeon, on 6 November 2007. At the time of the assessment, Dr Bodel found that there was an impairment of the right shoulder (10% permanent loss of use of the right arm at or above the elbow) and of the right lower leg (3% WPI). Dr Bodel also believed the worker was probably ﬁt for part time light duty activities with a 10 to 12 kilogram lifting limit. Dr Bodel also found that ultimately, she would be able to upgrade to full time work in a permanently modiﬁed basis with a 15kg lifting limit.

Arbitrator’s Decision In the WCC the worker’s claim for weekly compensation was made only with respect to the right shoulder. The Arbitrator found that the worker was fit for normal duties with respect to her right shoulder from 24 April 2003 to at least September 2007 (the date of her lower back and right leg injury). He was not persuaded that the worker’s resignation was as a result of her right shoulder. He found the worker was fit for normal duties from 24 April 2003 with the exception of a 3 to 4 month period from 6 November 2007 being the dates referenced by Dr Bodel in his report. It is clear in reaching his decision, the Arbitrator took into account that: there was no complaint, subsequent to 24 April 2003; that the evidence was that the worker was working normal pre-injury duties over those years; and there was a full clearance by a medical certificate on 13 September 2007. He was therefore satisfied that the worker was fit at all times for pre-injury duties regarding the right shoulder with the exception of the period from 6 November 2007 to 6 March 2008.

On Appeal On appeal there was very much a focus on there being no medical certiﬁcate regarding the right shoulder from 24 April 2003 to support any claim for incapacity. In dealing with the appeal, Deputy President Roche (DP Roche) of the WCC referred to the authorities, in particular, Commissioner for Railways v Agalianos (1955) 92CLR390, and the principle that there is an incapacity when workers, because of their injury, are unable to sell their labour in any market reasonably accessible to the workers. DP Roche therefore indicated that when assessing incapacity, the Arbitrator was required: to assess Ms Doyle’s ability to earn in the labour market reasonably accessible to her having regard to the whole of the evidence, including the nature of injury and disability, her age, education and training, her work experience and the fact that she had not had the beneﬁt of any rehabilitation training.

DP Roche found that the fact the worker was performing her usual duties until she resigned ‘was not determinative of her claim for weekly compensation’. He believed it was wrong for the Arbitrator to place great emphasis on that fact while ignoring the worker’s evidence of continuing pain and stiffness in her right shoulder and that she had been finding work difficult so much so that she had discussed resigning from work with her husband. DP Roche found that the Arbitrator erred in drawing an adverse inference from the failure by the worker to tender medical certificates to substantiate her claim. DP Roche found that the worker’s failure to tender any certificates from 2003 to 2007 was explained on the basis that she did not have a regular general practitioner and that her treatment consisted of analgesic medication and home based exercises. In other words there was no reason for the worker to see a GP.

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Lack of Medical Certification May Not Necessarily Defeat a Weekly Payments Claim by Craig Bell

Implications The case demonstrates the difference in how the WCC deals with medical certificates as compared to general claims management by insurers. While insurers are required by the WorkCover Authority to calculate weekly compensation based on WorkCover approved medical certificates, the lack of medical certificates is not necessarily determinative of the weekly payments issue when there is a dispute in the WCC. It is clear that an Arbitrator is required to look at the whole of the evidence, not only medical certificates, but also the evidence of the worker, what sort of treatment the worker was having and the opinions of other medical practitioners. In practical terms, there are many cases where a worker leaves employment after receiving a pre-injury duties certificate (PID) and then, after a number of years, makes a claim for weekly compensation on the insurer. The principles in the above case indicate that a PID certificate at the time of cessation of employment may not necessarily defeat a worker’s claim for weekly compensation in the WCC.

For more information, please contact:

Craig Bell Partner T: 02 8257 5737 craig.bell@turkslegal.com.au

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