Compensation for Home Injury: Ongoing Symptoms See Later Injury Deemed Compensable

26 March 2018

In a vital decision under the ambit of workers compensation, a worker who was injured at home and suffered hearing loss has been awarded permanent impairment compensation under South Australia’s Return to Work Act 2014 (RTWA).

The South Australian Employment Tribunal rejected ReturnToWork South Australia (RTWSA)’s argument that there was an inadequate connection to the worker’s employment as a truck driver, finding that two work injuries that were previously suffered by the worker, within the course of his employment were significant contributing causes to the new injury.

Background

The worker was a Villacare Pty Ltd truck driver when, in March 2011, he slipped and fell into a fuel tank. The worker hit his head in the process and lost consciousness.

In April 2011, the worker was again injured as he was rear ended whilst driving his truck, again striking his head and losing consciousness. He temporarily returned to work on light duties but was terminated in September 2015.

The worker suffered another injury in October 2015, whereby he fell at home after suffering a dizzy spell and again hit his head, losing consciousness. This incident caused the loss of hearing in one ear and he sought workers compensation.

Issues

RTWSA denied liability, arguing that the injury did not arise out of the course of the worker’s employment because it lacked the causal significance required by section 7(2) and (3) of the RTWA.

It was noted, however, that the worker had previously been successful in his claims with RTWSA, and that the worker had experienced regular dizzy spells and his balance was impaired since his initial work realted injury.

The South Australian Employment Tribunal considered that, in previous legislation, the requirement was that an injury “arose out of employment”, whereas the applicable new legislation included an additional requirement that the employment “was a significant contributing cause” of the specific injury. Despite this difference in wording, Deputy President Mark Calligeros noted a Victorian Supreme Court finding that the different wordings “cover the same ground”.

Section 7(2)(a) of the RTW Act does not impose any additional temporal requirement on the connection between employment and an injury… Therefore it does not matter that the third injury did not arise in the course of [the worker’s] employment and in fact occurred after his employment had ended.

Finding

Considering that the expert evidence was unchallenged and clearly indicated that the worker’s earlier injuries caused his recurrent dizziness and disorientation, these were significant contributing causes to the ultimate injury for which the worker was claiming compensation. The Tribunal determined that the worker suffered an 8% whole person impairment and the worker was awarded $17,351.