TGB lands significant win for injured midwife

What happens when you are injured at work, but your employer or their insurer insists there is no problem and won’t pay your medical expenses or income?

That was midwife Theresa Bowman’s experience for more than three years, until a recent SA Employment Tribunal Court decision acknowledged her injuries and ordered her employer  to take it seriously.

As reported on 13 November 2017 in The Advertiser newspaper, Ms Bowman’s injuries were caused when she was helping deliver a baby at the Riverland General Hospital in South Australia on 5 November 2013. The pregnant woman who had inhaled too much nitrous oxide began to slip out of bed. Ms Bowman, who is in her fifties, was supporting the patient to stop her falling, along with others, when someone unexpectedly let go. Ms Bowman immediately felt a ‘dead weight’ in her arms with neck pain, and from then on, felt numbness in her arms, pain in her left shoulder and decreased motion in her right shoulder.

Although she had right shoulder rotator cuff surgery in February 2014, there was only moderate improvement in her condition, and she returned to work in March of that year on reduced hours and duties.

Some time after the initial injury and subsequent surgery, Ms Bowman was directed to undergo an Independent Medical Examination in order to assist with an up to date ‘Return to Work’ Plan.

Occupational  physician, Dr. Mary Obele reported that her range of shoulder motion was ‘essentially normal’ and that she was fit to return to full duties. This is despite Ms Bowman actively voicing her concerns that she would not be able to.

Despite this, her employer, Country Health SA, determined that Ms Bowman was no longer incapacitated for work, further medical treatment was not necessary, and that Ms Bowman was able to return to her pre-injury work duties and hours.

In reality, Ms Bowman was physically unable to perform what was set out for her to do as a result of her work-caused injuries.

She was forced to use up sick leave and annual leave entitlements for her periods off work (that related to her work caused injuries), and when she failed to comply with the plan that was impossible to abide by, she was threatened with a ‘breach of mutuality’ which essentially cut her off the workers compensation system.

Ms Bowman turned to Tindall Gask Bentley Lawyers for advice about her legal options.

Essentially, the main issues faced by Ms Bowman, like many other injured workers, were:

1. The Return to Work Plan was not suited to her physical restrictions. Her employer was pushing her to go beyond what she was physically capable of;

2. Reasonable medical expenses such as massage and physiotherapy – which were required in order to assist Ms Bowman to continue working – were rejected on the basis that they were not necessary;

3. Not all physical injuries were appropriately documented and/or formally accepted – which impacted upon the Whole Person Impairment claim. In order to receive the maximum compensation it is extremely important to ensure all injuries are covered in the claim.

What can I do if I disagree with a doctor’s report and assessment?

If a Return to Work plan or directive is issued following an Independent Medical Examination that a worker disagrees with, the worker can issue an Application for Review at the South Australian Employment Tribunal. This Application essentially sets out why the worker believes the decision is wrong. Typically through the dispute process, a worker will be entitled to obtain evidence from an independent or treating doctor of their choosing. This is the process that Ms Bowman followed and ultimately the opinion of her treating doctors, along with occupational physician, Dr John Bastian, were preferred by the Tribunal over that of Independent Medical Examiner, Dr Mary Obele.

Who will pay my wages while I’m off work and for how long?

If a claim is accepted, workers have a maximum of two years weekly payments, the first 52 weeks are paid at a 100% ‘average weekly earnings’ rate, and the next 52 weeks are paid at 80% of the ‘average weekly earnings’ rate.

If a claim is rejected, and an Application for Review is filed within the Tribunal, there is an option for a worker to elect to receive interim benefits for weekly payments during the dispute process. The worker will need to show that they are experiencing financial hardship as a result of their income maintenance ceasing.

Who will pay my medical expenses while I am off work and for how long?

Workers are entitled to a maximum of three years of medical expenses, or an entitlement of 52 weeks once income maintenance payments stop. Income maintenance payments can be stopped for a variety of reasons, such as a worker no longer requiring ‘top up’ payments as they have made a full return to work, or in rare cases if the worker is in breach of their obligations pursuant to the Act.

There are exceptions to the entitlement period of medical expenses, such as future surgery that may be required or any aid or ‘therapeutic appliance’ a worker may require for their ongoing capacity. These exceptions are technical and complex and we recommend legal advice be sought prior to medical expenses ending so workers can understand how these exceptions apply to them.

In some cases, if a rejected claim is in dispute, meaning an ‘Application for Review’ has been filed with the South Australian Employment Tribunal, or if further medical evidence is required by the Compensating Authority before they will make a decision on the claim, the Compensating Authority may offer ‘interim medical expenses’ to be covered in the meantime.

Will my expenses be reimbursed like Ms Bowman’s were?

If your claim is rejected and you have been paying for your own medical expenses we recommend you keep all receipts. If the rejected claim is challenged, and you are successful, you can then seek that the Compensating Authority reimburse you for all ‘out of pocket’ expenses you have made with respect to your claim (including travel) – provided these are reasonable and relate to your injury.

Can I get a payment or reimbursement for lost earnings?

The same applies for time off you have had as a result of a work injury. Like Ms Bowman, if successful, any annual leave or sick leave will be re-instated and income maintenance ‘back paid’ to you.

What should I do if my claim is rejected?

If you have received a formal Determination rejecting your injury claim for compensation we highly recommend you get legal advice as soon as possible. An Application for Review must typically be filed within 4 weeks of the determination being made unless permission is granted by the Tribunal for an extension of time.

If you have been injured in the workplace and experienced physical, emotional and financial loss it is vital you know your legal rights and entitlements. Tindall Gask Bentley Lawyers are workers compensation specialists. Call us today to book a free first interview or leave your details here and our team will be in touch soon.