In a recent decision, a freight handler injured in 2000 – having accepted a lump sum from his employer that year and returned to work, only to re-injure himself later that year and cease work completely – was denied an attempt to revoke his previous election.
The plaintiff worked for the company since 1997 as a freight handler, performing hard physical labour. In February 2000, he suffered a significant lower back injury on the job, eventually resulting in an operation in September of that year. The plaintiff returned to work in December, and in August 2001 elected to receive lump-sum compensation from his employer. In October, the plaintiff developed severe lower back pain after an incident at work, and never returned to his employer after this event.
Per a summons filed in February 2019, the plaintiff sought leave to revoke the election made in August 2001. Even though the plaintiff, at the time, elected to receive permanent loss compensation under the Workers Compensation Act, such an election was irrevocable. The only way a further claim could be made was if, at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, in which case there could be a possibility to revoke the election and commence proceedings in court for the recovery of further damages.
The court found that there was no reasonable expectation at the time of the election that the plaintiff’s injury would not worsen. In fact, several doctors reported that there was potential for the level of permanent impairment in the plaintiff’s back to increase, and even the possibility of permanent loss of use in the lower limbs.
A doctor consulted after the fact stated that the plaintiff should never have returned to a position where he would be required to lift more than 20 kg. The incident in October 2001 involved lifting of freight that weighed more than 65 kg.
Based on medical testimony, the court found there had been a potential for an increase in the level of permanent impairment in the back and each leg. The court also noted that the plaintiff should have known he was permanently unfit for work involving heavy lifting, and that he should not have done such heavy work. The plaintiff failed to prove there was no reasonable cause to believe further deterioration would occur, and as a result, his summons was dismissed and he was ordered to pay the defendant’s costs.
If the plaintiff had not accepted the lump sum and returned to work, he could perhaps have prevailed in a better claim for his long-term disability. If you have been injured at work, seek counsel before agreeing to a settlement. You can contact Contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers today.