A recent case that involved total permanent disability claims in Australia was a perfect example of how there is a difference between establishing workers' compensation liability and proving negligence on the part of the employer.
In the case, the plaintiff, named as Mr Caruso, alleged he suffered a back injury at work on December 2, 2002, that was due to the negligence of his employer, and that the employer also breached the Occupational Safety and Health Act of 1984. He claims this accident caused total permanent disability that left him unable to work.
He asserted his employer continued to ask him to perform repairs on motor vehicles despite previous back injuries. However, his employer argued that there was no single event that caused his 2002 back injury, and that there was no breach of duty in any way.
The employer also argued that even if there was a specific event, it would have been due to the negligence of the employee for not treating his back injuries properly.
Making the case for a specific event
A large part of the litigation surrounded whether the injury occurred as Mr Caruso said. He argued he injured his back while checking the wheel bearings and suspension on a vehicle. However, the only supporting evidence came from a colleague who said he saw the incident out of his "peripheral vision".
The presiding judge stated that this was not satisfactory, and that he could not determine what specific task Mr Caruso was performing at the time of the alleged accident.
However, the judge did not dismiss the claim simply because of this. Rather, he stated the issues of negligence require further examination, and that it would be possible for the plaintiff to win the case when the evidence was taken as a whole.
The court then turned its attention to the alleged breach of duty. Mr Caruso argued that his employer should not have made him responsible for workshop duties. However, the judge found that the plaintiff's previous injuries would not have been substantial enough to force him to work in a clerical or sedentary role.
This led the judge to dismiss the claim for breach of duty. The decision demonstrates that employees cannot put themselves in harm's way and then claim negligence on the part of their employer.
To learn more about TPD claims, get in touch with a compensation lawyer.