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Compo extended for injury from lugging liquor

The award was made despite the insurer’s decision to terminate her payments.
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Compo extended for injury from lugging liquor

Compo extended for injury from lugging liquor

27 August 2020

By Gaby Grammeno

A commission has awarded ongoing compensation payments beyond the first 130 weeks of incapacity to a woman injured while moving cartons of alcohol at a liquor retail outlet.

The award was made despite the insurer’s decision to terminate her payments after a Work Capacity Decision asserted that she was fit for suitable employment.

The injury

The woman was employed by a major supermarket chain. While moving stock in one of her employer’s bottle shops in October 2016, she injured her lower back.

For the next 154 weeks she received weekly compensation payments, but in June 2020 the employer’s insurer issued a Work Capacity Decision that relied on labour market and vocational evidence to maintain she was fit for suitable employment. Payments were then terminated.

The woman disagreed, insisting she is still unfit to work. Her employer believed she was able to resume work and that because of section 38(3) of the Workers Compensation Act 1987 (NSW) the woman was not entitled to any further weekly payments. (Section 38 deals with limitations to ongoing compensation beyond 130 weeks of payments.)

The parties engaged in discussions through a conciliation process but those discussions were not successful. The dispute was therefore referred to the NSW Workers Compensation Commission, which heard it by teleconference.

In the commission

The matter involved a challenge to an insurer’s work capacity decision. The issues the commission needed to sort out were whether the woman was fit for work or not, and if not, what if any is her entitlement to weekly payments during the period claimed that is, from 11 June 2020 and continuing.

A medical assessment dated in May 2019 noted that the woman had ‘a chronic pain condition with a poor prognosis’, but suggested she may be able to return to office or administrative work at that time. Her pain had compelled her to be prescribed significant medication, including opioids.

In November 2019 she had a fall, which she attributed to a back spasm and her leg giving way. After the fall, she began to experience pain radiating to her right buttock and thigh and pain in her left knee.

The woman’s statement detailed the severity of her pain, and said she had developed depression, constant back ache and spasms, can’t bend and is unable to walk or stand for long periods.

The Work Capacity Decision issued by her employer’s insurer in March 2020 relied heavily on documents commissioned several months earlier, including a labour market assessment taking into consideration the woman’s capacities and tolerances at that time. That assessment found she would be suitable for roles such as a receptionist, customer support officer or administrative assistant. The employer also referenced the doctor’s report from the previous year stating that despite her ongoing pain, she’d be able to return to office and administrative work.

The woman’s own GP had a different opinion, and provided a series of medical certificates from March until June 2020 stating she had no capacity for work.

The Commissioner observed that the nature of her incapacity was significant. She is now aged 58 and has been unable for some time to obtain remedial treatment because the employer’s insurer denied liability for it. The denial appeared to have occurred at about the time of the work capacity decision.

The Commissioner accepted the opinion of the woman’s own GP that the lack of treatment made the woman’s lower back condition worse. This worsening of symptoms, the level of medication and the chronic pain she described induced the Commissioner to take the view that for practical purposes the woman had had no capacity for work from 11 June 2020 and continuing.

He therefore awarded in favour of the woman the sum of $334.31 per week from 11 June 2020 to date and continuing.

The bottom line: Deteriorating symptoms, chronic pain and the consequent need for significant medication, together with medical opinions supporting further treatment or asserting incapacity for work, may entitle an injured person to ongoing compensation payments beyond 130 weeks.

Read the judgment

Whear v Coles Supermarkets Australia Pty Ltd [2020] NSWWCC 261 (29 July 2020)

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