Elliot v Franklins Pty Limited (NSWPICPD 2022)

Link to Decision

Key Takeaways

In this matter, the key issue was whether an insurer had the onus to prove that the effects of a workplace injury had ceased. President Judge Phillips was satisfied that the onus is not on the worker to disprove a claim made by the insurer that an aggravation has ceased.

This decision highlights the importance for the insurer to possess evidentiary support when asserting that an aggravation of a pre-existing injury has ceased.  

Brief Facts

On 8 January 2010, while undertaking a full site survey of one of the employer’s supermarkets, the worker developed significant pain in her lower back as a result of bending, twisting, lifting and other repetitive movements undertaken in the course of her site survey. The worker came to this employment with a significant history of non-work related pain and disability in her lumbar spine, requiring extensive medical treatment.

The worker brought proceedings in the Workers Compensation Commission, which eventually resolved with the insurer agreeing to pay a closed period for weekly compensation and medical expenses.

Subsequently, the worker underwent three spinal surgeries in 2014, 2017 and 2018, the expenses of which were not claimed from the insurer. In June 2020, the worker made a claim for 37% whole person impairment (WPI) in respect of her lumbar spine injury, as well as other injuries alleged to have arisen because of the injury on 8 January 2010.

The insurer disputed liability asserting that the worker had recovered from the 2010 injury to her lumbar spine and also disputed that it was causative of the other injuries alleged.

The primary question for determination by the Member was whether the effects of the accepted injury to the lumbar spine on 8 January 2010 had passed and, as a result, whether any pain or disability continuing to be experienced by the worker relates to her pre-existing lumbar condition. Additionally, the Member was required to determine whether the injury of 8 January 2010 caused injury to the cervical spine and the consequential conditions.

The Member made the following determination:

• The worker did not succeed in her claim with respect to the lumbar spine and the consequential conditions.
• The worker was successful in establishing a primary injury to the cervical spine on 8 January 2010.

The worker sought to appeal the Member’s decision with respect to the lumbar spine.

Judgment 

The President agreed with the worker’s submissions that the Member had erred in placing the evidentiary burden on the worker in establishing that the effects of the injury had not ceased. It was noted that the evidentiary onus to provide that an aggravation has ceased rests with the party who makes this assertion.

In this matter, the insurer made that assertion in its dispute notice, as well as the submissions advanced at the hearing. The President found that because it was the insurer who asserted that the incident on 8 January 2010 constituted an aggravation of the underlying back condition and that aggravation had ceased, the burden of proof in establishing this rested upon the insurer.

The President re-determined the issue. Following the President’s consideration of all available medical evidence relating to the worker’s pre- and post-injury clinical history, the Member’s decision at first instance was upheld and re-entered an award in favour of the respondent in respect of injury to the lumbar spine.

Implications

This is a clear example of the need to back up your claim. If the insurer intends to assert that the worker no longer suffers from any work-related aggravation, and any ongoing symptoms relate to his or her longstanding pre-existing condition, it must be prepared to bring forward evidence in support of this assertion. The worker will not be expected to refute an unsubstantiated claim made by the insurer.