Claire Hammond v Cerebral Palsy of League Queensland M172/12
11 September 2013
On 28 January 2011, the worker (the Plaintiff) alleged she sustained an injury to her thoracic spine as a result of attempting to transfer a resident from a chair to her bed using a hydraulic hoist lifter. She was attempting to slide the sling under an obese resident. She was 61 years of age at the time.
The trial proceeded on the issues of causation and quantum only.
On 11 September 2013, Magistrate Jennifer Batts of the Caboolture Magistrates Court dismissed the Plaintiff's claim as she failed in her burden of proof to make a causal link between the event of 28 January 2011 and her claimed injuries pursuant to sections 305D (Causation) and 305E (Onus of proof) of the Workers' Compensation and Rehabilitation Act 2003.
Her Honour preferred opinion of the Defendant's orthopaedic surgeon, over those of the orthopaedic surgeon who assessed the Plaintiff during the statutory claim and the Plaintiff's neurologist.
The Defendant's orthopaedic surgeon's report was the only report to accurately detail the Plaintiff's independent health condition, that being rheumatoid arthritis (“RA”) (the Plaintiff's RA condition was diagnosed some eight months after the work related incident).
The orthopaedic surgeon's examination during the statutory claim preceded the Plaintiff's diagnosis of RA and thus his omission was explicable.
The neurologist's primary report was authored three months after the Plaintiff's diagnosis of RA. Her Honour considered it was inexplicable that such a serious and debilitating medical condition could be omitted. Further, Her Honour commented on the neurologist's refusal to answer hypothetical questions put to him (by WorkCover's counsel) despite being told they concerned evidence given by the Plaintiff. Her Honour submitted the refusal “was partisan”.
Her Honour believed the majority of the Defendant's orthopaedic surgeon's opinion was well supported both in terms of its foundations and conclusions.
As the Plaintiff's claim was dismissed, there was no entitlement to damages. Her Honour, however, assessed damages at $719.50, clear of the WorkCover refund of $19,843.99.
Breach of duty of care was admitted prior to trial. This case highlights that even though an employer may have breached their duty of care, the onus is on the worker to prove that the breach was a material cause of the harm suffered by the worker.