When Will You Be Liable For The Doctor’s Mistakes?

Employers may not be aware that the liability for workers who receive negligent medical treatment for compensable injuries, which aggravates pre-existing injuries and causes new ones, could ultimately rest with them.

A recent case in New South Wales, reported in the Sydney Morning Herald (see link below), has highlighted the importance of Employers, when managing WorkCover claims, to ensure that they obtain early and competent medical and rehabilitation advice.

http://www.smh.com.au/nsw/woman-off-work-for-life-due-to-cure-for-industrial-injury-20131103-2wuy5.html

In CHEP Australia Limited v Strickland the worker was receiving treatment for a work-related repetitive strain injury to her wrist.  The worker was prescribed Mobic, an anti-inflammatory drug, as part of the treatment for her injury.  Shortly after beginning to take Mobic the worker started to complain of headaches and, as a result of medical advice, stopped taking Mobic on the basis that she would resume taking it again if the pain increased.  The worker began to take Mobic again and shortly after reported “extreme pain in her head and eyes” which was found to have been caused by an aneurysm in the brain.

The worker made a claim for income maintenance and medical expenses as a result of the aneurysm, which was declined by the employer’s insurer.

The New South Wales Workers Compensation Commission found, on appeal to a Presidential Member, that the Arbitrator’s finding that the consumption of Mobic was causally linked to the worker’s aneurysm was correct and the worker had established an entitlement to income maintenance and medical expenses.

In South Australia the authority is derived from the decision of the Full Bench of the Workers Compensation Tribunal in Antoney v WorkCover/GIO Australia (Winsford Pty Ltd) J.D.9/1999.

In this case a worker was unaware of a spinal tumour until activities at work caused an aggravation to the tumour which resulted in symptoms developing in the worker’s left arm and neck.  The worker underwent surgery to remove the tumour and also relieve the symptoms in his left arm and neck.  As a result of the surgery, the worker was then totally incapacitated for a period of time.  The Full Bench found that:

  1. One of the reasons for the surgery was the alleviation of symptoms attributable to the work injury;
  2. Without the work related injury the tumour would have gone undetected and the surgery never performed; and
  3. There was a direct causal link with the work caused aggravation.

Essentially, this makes employers liable (registered employers through their premiums and self-insured employers directly) when the medical treatment for injured workers goes wrong, provided that the work related injury was a significant reason for the medical treatment.

Employers should always strive to engage with injured workers as early as possible to ensure that they are receiving the appropriate treatment they need in respect of their injuries and rehabilitate them back into the workforce as soon as practicable.

Clearly it’s not always possible to ensure that treatment of injured workers goes smoothly and employers seeking to recover the costs incurred as a result of inappropriate, or negligent, medical services provided to a worker should seek advice.

For more information, please contact:
Patrick Walsh

Patrick Walsh
Director
p.  +61 8 8124 1941
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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