The decision of Sinclair v Sunshine Coast Independent Living Service Inc  QSC 63 reinforces how important it is for an injured worker to make a formal report of their work injury to the employer and to their doctor, as soon as possible after their work accident occurs.
The Plaintiff claims a back injury at work pulling a wheelchair bound resident over a step and door lip
In the case of Sinclair, the Plaintiff alleged she had injured her back in the course of her work on 28 July 2013. The Plaintiff was employed as a Disability Worker caring for disabled residents of a home where they were living independently on the Sunshine Coast in Queensland. The Plaintiff's duties required her to help with dressing, grooming, bathing, preparing meals and taking the residents on social outings during her work shift. At the time of her alleged back injury in the course of this work, the Plaintiff had been in such employment for approximately one month.
One of the residents that the Plaintiff was required to care for at the home, Paula, suffered from Down Syndrome and required quite significant assistance with most daily activities, including mobilising and general monitoring in her activities. On 28 July 2013, the Plaintiff was undertaking her normal duties caring for Paula and one other resident of the home, when she took the residents, including Paula, on an outing to the local park. When the Plaintiff was returning with the residents from their outing, she claimed that she injured her back when she was pulling Paula, who was in her wheelchair, up the step and over the door lip situated at the entry to the carport area of the house. The Plaintiff claims that as she was manoeuvring Paula in her wheelchair up the step and over the door lip, she felt severe pain in her lower back.
The Plaintiff continued in her work at the home following the alleged work injury, watching a movie with the residents and then aiding Paula with her toileting and dressing for bed before ending her shift. The Plaintiff gave evidence that toward the end of her work shift, Paula needed help with her toileting, during which she slipped over in the bathroom. Because of her injury, the Plaintiff had to wait for her replacement co-worker to arrive at the house before she could get Paula up off the floor and clean and dress her for bed. The Plaintiff's co-worker who assisted her with lifting Paula gave evidence confirming this had occurred, but that he did not recall the Plaintiff making any mention to him of her suffering any back injury during her work shift that day.
At the end of her shift, as was the required practice, the Plaintiff completed a diary, setting out a brief history of the day's events and the care she had provided, as well as any issues that had arisen with the residents during her shift. The Plaintiff did not make any reference to her back injury in her diary notation.
Evidence was given at the trial by the Plaintiff's supervisor that no reporting of the work injury was made by the Plaintiff when she contacted her on 30 July 2013, two days after the event, to advise that the Plaintiff would not be able to care for Paula any more as she had a back condition.
Evidence provided by the Plaintiff's treating General Practitioner at the trial was that the Plaintiff had sustained a back injury when falling from a hammock in 2010. The Plaintiff had sustained a disc protrusion at L5/S1 level of the lumbar spine at that time and had required treatment for the injury over a period of approximately six months, after which the injury appeared to resolve. The Plaintiff's GP also gave evidence that the Plaintiff made no reporting of any work injury when he first saw her for treatment of the back injury after 28 July 2013, and consequently he had taken her complaints of back pain as being related to her previous lumbar spine injury, causing her ongoing problems.
In contrast to her GP's evidence, the Plaintiff testified that she had reported the work event to her treating GP upon her initial visit post-injury, but this was not supported by her medical records. In fact, the records indicated that there was no reporting of any injury at work until 8 August 2013, 11 days after the alleged work incident.
The Defendant employer argued at trial that the work event the Plaintiff alleged caused her back injury did not in fact occur, and that any back injury of the Plaintiff was solely due to her previous injury when she fell from the hammock in 2010.
Judge finds work injury did not occur
After hearing evidence from the Plaintiff, her co-workers, supervisor and treating doctors, as well as evidence from the Plaintiff's friend and mother who testified the Plaintiff had told them of the incident at the time of its occurrence, His Honour Holmes J did not accept the Plaintiff's claims that she had sustained injury to her back in the course of her work as alleged. His Honour based this finding on the lack of reporting by the Plaintiff on the day of the alleged work incident. He noted that she had failed to make any reference to her back injury when completing the diary at the end of her work shift, and this was when there was an area in the book specifically for such reporting. Further, he did not accept that the Plaintiff had reported any work injury to her GP when seeing him initially following the alleged incident, because her GP had made a very detailed reporting of her alleged work injury on 8 August 2013, some 11 days later when the GP's records indicated it was first reported to him. His Honour also noted the lack of reporting to her co-worker on the day of the alleged injury, and to her supervisor two days later, from the evidence of the co-worker and supervisor at trial. His Honour did note that although it was a possibility that the GP, supervisor and co-worker could each have failed to note or recall the reporting by the Plaintiff, he considered that the failure of all three witnesses to do so, leant more to a finding that no reporting was in fact made because no such work incident took place.
If work injury had occurred, would the employer have been found negligent?
Despite finding that the work injury did not occur as the Plaintiff alleged, His Honour still provided his determination on liability. His Honour found that had the work injury occurred as the Plaintiff alleged, then he would have determined that the employer had been negligent in failing to instruct the Plaintiff as to the safe means of entry to and from the home when taking the residents on outings. His Honour based this finding on the evidence of the three co-workers of the Plaintiff who in their testimony all confirmed the Plaintiff's evidence that she was never given any instruction as to there being a concrete ramp on the patio at the home that she could utilise when mobilising residents at the home, or to use the front door to access the patio ramp. His Honour considered that a prudent employer would have done so.
His Honour also found that using the carport area to enter and exit the home required workers to manoeuvre wheelchair bound residents up over a step and door lip, thereby placing them at risk of significant injury. His Honour considered that this risk of injury was reasonably foreseeable to the employer.
If work injury had occurred, what damages would the Court have awarded?
After determining liability, the Court then turned its decision toward the damages it would have awarded for the Plaintiff's injury had she succeeded on proving her case. His Honour Holmes J determined that if he had found for the Plaintiff on liability, he would have assessed her damages award at around $290,000, consisting primarily of past economic loss ($112,000) and future economic loss ($150,000). His Honour allowed the Plaintiff's full past economic loss to the date of the trial, but did not accept the Plaintiff's claims that she was unable to return to any work in the future due to her back injury. His Honour considered that the Plaintiff was in fact capable of undertaking sedentary work despite her back injury, and she would be able to undertake that work into the future to normal retirement. He did however allow a global award of $150,000 for future economic loss, (based on a $10,000 income loss annually), accepting that the back injury was likely to interfere with the Plaintiff's earning capacity in the future.
Steps to take if injured in the workplace
The case of Sinclair clearly shows how important it is for injured workers to make a report of their work injury as soon as possible after the event. That reporting should be not just to the employer, but also to the doctor treating the work injury, any co-workers involved in the work event, or in contact with the injured worker following the event. Completing an incident report or making some form of written recording of the event with the employer, and obtaining a workers' compensation medical certificate from your treating doctor upon your initial consultation will go a long way to support your injury claim should, later on, you need to bring a workers' compensation or Common Law claim for your work injury.
Failure to report a workplace injury can result in the loss of significant damages, as demonstrated in this very case.
For information on the steps you should take if you suffer a workplace injury, go to our article, "Six important steps when making a work injury claim".
For information as to what types of compensation and damages you may be entitled to if you suffer a work injury, go to the following link: What compensation am I entitled to?
Workplace Injury Lawyers Brisbane and Gold Coast
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