Written by Peter CarterJune 28, 2015
A shift-work fitter made no mention until months later of injuring his back doing heavy work usually reserved for a crane, because it wasn’t unusual for back pain to decrease during his days off.
The accident occurred on a November 2011 night shift at a Rio Tinto mine near Gladstone when Kristian Hodgson was installing a coupling onto a pump shaft.
But on this occasion, he noticed during his rostered days off – taken on Hamilton Island – that the pain radiating down his right leg was increasing.
He consulted his GP, Dr Christian Tabinga, in Gladstone and a CT scan was ordered.
Hodgson told his GP he did not want to lodge a WorkCover claim – because he did not want to jeopardise his job prospects – and made no mention of the work site incident when contacted on several occasions by Rio’s occupational health officer.
His GP referred him to an orthopaedist for consideration of surgery. Dr Matthew Scott-Young performed spinal surgery in January 2012 and in February, his GP completed a WCQ medical certificate.
On the GP’s advice, Hodgson contacted WCQ in March to make a telephone report of the work accident.
The WCQ contact log recorded he was informed that a claim was lodged and a text message was generated to notify him of the claim number.
When Rio first learned of the accident from WCQ, its suspicions aroused. WorkCover rejected the claim in May 2012, implying it was probable that the symptoms complained of were the result of a long standing condition from a 20-yr-old injury.
Hodgson never received the rejection letter.
He remained in employment until November 2014 when he was terminated on medical grounds.
But in March 2014, he consulted lawyers about the possibility of a common law claim. He told them he had not even made a WorkCover claim.
No mention was made to the lawyers of the claim rejection letter, notwithstanding WCQ sent him a copy by email that month.
WCQ made it a condition of accepting his Notice of Claim for Damages on an urgent basis, that he Hodgson lodge the application to determine whether or not a claim had been validly lodged.
According to Justice David Boddice, Hodgson’s explanation of having called simply to notify WorkCover of the incident “lacked credibility”.
The judge ruled that the telephone notification was a valid application not affected by the provision of a medical certificate until later.
Having made a claim that was rejected, Hodgson was ruled disentitled to pursue the Notice of Claim for Damages or bring any common-law claim for damages.
He can nevertheless still seek a review through the Workers’ Compensation Regulator, of the rejection decision. The time to appeal that decision ran from March 2014 (when it was re-sent by email) but according to judge Boddice, “he is not estopped from now making an application for a review out of time”.
Categories: Personal Injury