By Simon Booth
There are limited arguments that an employer can make in relation to claim liability. The following are NOT acceptable reasons for disputing a claim.
They have a second job
Workers often perform work for other employers, and there are numerous examples where this takes place on a cash payment basis. Such arrangements can make the worker reluctant to lodge a claim against the other employer.
However, the mere fact that the worker works for another employer is not grounds to decline the claim. Unless you have evidence that the injury occurred at the other employer, if the injury sustained by the worker, is consistent with the statement they provide in relation to how the injury occurred, then it is likely to be accepted.
The injury was pre-existing
Many employers either ignore, or fail in, their due diligence during the recruitment process and invite into their business substantial risk through the employment of individuals with pre-existing injuries or illness.
Employers often argue that they should not be liable for an injury as the injury is an aggravation of a pre-existing condition. EG: A worker with a pre-existing shoulder injury aggravates this injury through repetitive work above shoulder height.
Both Victoria and Queensland have specific sections in their legislations, Section 41 and Section 571b respectively, that enable an employer to ask about pre-existing conditions. If done appropriately this can result in a claim for a pre-existing injury being declined, where the injured worker failed to disclose the injury.
However, in the remaining states (and Victoria and Queensland if the appropriate process is not followed) the “Eggshell Skull Rule” applies. This rule means that employers must take workers as they find them. Once a worker is employed, anything that the worker does, during the course of employment, that makes a pre-existing condition worse is compensable.
The accident was their fault
Most injuries are caused through accidents that are no fault of the employer. In fact, some injuries are a direct result of the injured workers own actions.
Employers often argue that as the injury was caused by the worker failing to follow procedures or doing something they shouldn’t have been, that they should not be liable for the claim.
This may be a good argument when confronted with a common law claim or even a Regulatory prosecution. Workers’ compensation, however, is a no-fault system, so unless the worker deliberately injured themselves, what led to the injury is irrelevant. All that is relevant is, did the worker suffer an injury in the course of their employment.
I don’t believe the worker
Whilst a bit of healthy scepticism should be applied to an employer’s approach to workers’ compensation, an employer’s beliefs, their ‘gut’ feeling, about a claim or claimant cannot be used as the basis for disputing a claim.
What an employer thinks, feels and believes is irrelevant when it comes to disputing a claim for a work-related injury. All that matters is what can be proven, and an employer arguing with an insure because they “know the worker is faking”, without the evidence to support this statement, is about as beneficial as tilting at windmills.
No one has ever been injured doing this before
Some employers raise the fact that in the time that they have been operating the business, no one else has ever been injured performing that job or using that machine.
Whether or not anyone has been injured doing the same task is irrelevant. The fact that the worker was performing the task wrong and this is what contributed to their injury remains irrelevant. As identified above, workers’ compensation is a no-fault system.
They’re the real problem
A problem a worker may be, but, as an employer, if you have failed to manage this, then you cannot use this as an argument when dealing with a claim for mental injury.
In these situations, casting aspersions at the worker not only provides no benefit to your argument, but it may also bias the insurer against you.
Employers often fail to manage a worker’s poor behaviour, then due to work issues, that may include the anticipation of performance management, these workers often lodge a claim for mental illness citing work related causes. Employers in this situation need to disprove the allegations made by the worker or tie these causes back to reasonable management action. At this point articulating the worker’s own poor behaviour will be of little value.
Employers, need to remember, in a no fault system, even the instigator of conflict can lodge a successful claim if the outcome of that conflict caused them injury.
With over twenty years’ experience in Workers’ Compensation, Simon Booth is a vocal advocate for employers in a scheme that often leaves them feeling powerless and frustrated. Simon and his team work with employers across Australia, helping them take back control of their Workers’ Compensation programs.
Disclaimer: This article provides general advice and should not be considered legal advice or an insurance consultation. You should seek appropriate counsel for your own situation. In addition, this post is directed at people in Australia. If you are outside Australia, please be aware that the circumstances in your own country may be different.
