Accurate Factual and Medical Evidence required for success in a Workers Compensation Medical Expense Claim

Published 09 May 2018

As with any type of personal injury claims and also claims for statutory entitlements under the workers compensation scheme, the success of the claim is dependent on the strength and accuracy of evidence. That is, for both factual and medical evidence. 

When making a claim for workers compensation, an injured worker is required to fill out a claim form which outlines the history and circumstances surrounding the injury. In most instances, it would be the workers first claim for workers compensation and the information provided on the claim form is usually very limited. The injured worker cannot be criticised for that. The claim forms themselves do not provide enough space for a detailed description of the injury and what the injuries were.

Additionally, the injured worker usually is not very descriptive of the circumstances surrounding the injury and at that stage would not know what all the injuries were caused as a result of the work incident. For instance, an injured worker may fall off a ladder and fracture a leg. The claim form discloses an injury to the fractured leg. However, with the passage of time there is an onset of symptoms to other body regions. Problems may develop in other regions, be it the pelvis, hip, lower back or neck, which were not so obvious from the outset. Injuries to these other regions may not be obvious in the first instance as the focus would be on the predominant injury at the time of the incident. In this example the predominant injury at the time of the incident is the fractured leg.

For one of our clients who was working as a garbage disposal truck driver, the factual discrepancy was whether he was pulling, pulling from side to side or pushing this large industrial bin when he was transporting it to his truck for disposal. The claim form itself did not give a description of how he was manoeuvring this industrial bin towards the truck. The true circumstance of the incident involved our client pulling the industrial bin from side to side, whilst walking backwards in order to maintain its momentum going forward. He needed to do it that way to overcome cracks and dissected lines in the pavement. The claim itself stated that he was pulling the heavy bin, but it did not go as far as to say that he was pulling the bin from side to side. Such a minor difference but yet it can have a great difference to a claim. Added to the problem was that the treating surgeon inadvertently had said that our client was pushing this very large industrial bin, which was full and heavy.

The insurer declined liability and did not allow our client his statutory rights for medical expenses and weekly compensation during periods of incapacity. Medical expenses included conservative  treatment, surgery and thereafter rehabilitation. The claim for weekly compensation included the period he was off work following the surgery until he was fit to return to his normal duties.

The workers compensation insurer was not prepared to pay any compensation. The insurer had relied on the set of facts given by the treating doctor and had their own independent medical examiner (IME) use those facts. The IME used the set of facts that the worker was pushing the large bin and could not have sustained an injury which was to his knee. The IME forming the view that the injury could be caused by twisting but added that it was most unlikely that there was twisting if the worker was pushing the heavy bin. The IME’s point of view was correct on those set of facts and could not be blamed. However, they were the incorrect set of facts.

The truck driver contact GMP lawyers for legal assistance. At that time the worker had lost time from work during time of surgery and rehabilitation and incurred a lot of medical expenses. The worker had paid for the surgery and rehabilitation personally.

At Gerard Malouf and Partners we were required to coordinate the evidence appropriate to the claim. We reviewed the insurer’s declination letter and the medical evidence they relied upon. Our client explained the facts surrounding the injury which conflicted with the treating doctor’s version and the IME version. We then obtained a detailed statement from our client to show that he was pulling the large industrial bin at the time of the injury and was twisting it from side to side in order to get momentum forward. The process of doing this has caused a twist to his left knee, which led to an injury to that knee.

We understood well at Gerard Malouf and Partners that the statement on its own was not sufficient enough to succeed in the claim and obtained a report from his treating doctor to confirm the facts surrounding the injury. We expressed the importance to our client to speak to the doctor once again and explain to him exactly how the injury was sustained and with that, the doctor understood that the history he had initially given was not correct so he amended this with a short supplementary report. A report was then provided by the treating doctor with a correct description of how the injury occurred.

It turned out that the large industrial bin cannot be pushed by one man alone. However, the large industrial bin can be pulled with sufficient application by one man.

After an extended dispute by the workers compensation insurer, we were armed with suitable factual and medical evidence and relied on that in proceedings.

Fortunately, the workers compensation insurer had eventually conceded that liability should be accepted and eventually the claim was accepted without the need for any dispute to be filed in the workers compensation commission.

In order to succeed in any claim for workers compensation, we at Gerard Malouf & Partners are well aware of what needs to be presented in disputed matters. We look at the issues of dispute and address these appropriately as we did in this particular case. By doing so, our client was then paid the cost of his medical expenses including surgery and also was paid weekly compensation for the period in which he was off work as a result.

For assistance from Gerard Malouf and Partners relating to a work injury or an injury that occurred other than work, you may contact us by phone on 1800 004 878 or complete our email enquiry form that you will find on our website.