No negligence in return to work process

A District Court judge has dismissed a worker’s claim for damages on the grounds that her employer had failed to properly evaluate her fitness for work before she returned to her pre-injury role. It was concluded that the employer had taken sufficient steps prior to the worker’s return to work, having regard to contemporaneous medical and vocational rehabilitation evidence.

Mrs Beasley was employed by Fortescue Metals Group as a haul truck driver at Cloudbreak Mine site in the Pilbara. On 17 August 2012, Mrs Beasley suffered an injury to her neck while operating a haul truck. She lodged a workers’ compensation claim for which liability was accepted. She returned to work in her full duties on 7 December 2012.

Mrs Beasley later reported sustaining a strain injury to her right elbow on 30 March 2013, when releasing a lever while operating a haul truck. Mrs Beasley lodged another workers’ compensation claim. Liability was accepted for the claim and Mrs Beasley received workers’ compensation payments and was started on a graduated return to work programme.

Ultimately, Mrs Beasley was unable to return to work. In June 2015, her employment with FMG ceased. Mrs Beasley was not certified as fit to return to her full pre-injury duties at any time following the March 2013 injury and claimed to be totally unable to return to work at all by reason of that injury.

Mrs Beasley pursued a common law damages claim against FMG. Her allegations of negligence essentially related to her return to full pre‑accident duties in December 2012. She alleged that she was not symptom free at that time and had not finished her return to work program. She further contended that there was no certification by a medical practitioner independent of FMG and contended that it was negligent to rely on this certification. It was also alleged that FMG was negligent in having her operate the haul truck from August 2012.

Mrs Beasley also contended she was pressured into returning to work by an injury management coordinator of FMG, who had directed a GP to certify the worker as fit to work. However, evidence was later led to the effect that the coordinator was not on site at the time that this allegedly occurred and so this contention was dismissed.

District Court Judge Gillan found that, by the time Mrs Beasley had returned to work in December 2012, she was largely but not completely recovered from her injury. Despite the fact she had not fully recovered, Mrs Beasley was nonetheless fit for her usual duties. It was noted that there was no evidence that Mrs Beasley was unfit for work and there was ‘no substance to the contention that Mrs Beasley was not adequately assessed for her fitness for work’.

District Court Judge Gillan noted that Mrs Beasley had been regularly assessed by her GP and onsite general practitioners, in addition to attending upon an external occupational physician, Dr Silbert, regarding her fitness for work. Dr Silbert certified Mrs Beasley as fit to work provided she had regular postural breaks and a four hour restriction in driving. Gillan DCJ found that this restriction was adhered to by virtue of postural breaks which were built into FMG’s work system.

District Court Judge Gillan determined that there was no evidence to support the plea that FMG failed to ensure Mrs Beasley could safely operate the haul truck. As to the remaining breaches, as it was determined by District Court Judge Gillan that the March 2013 was a new injury and so the remainder of the grounds were not made out.

This judgment demonstrates the value in employers and their insurers ensuring a thorough evaluation of a worker’s capacity when returning to work from injuries. It highlights the importance of involving treating doctors, who are well informed of a worker’s pre-injury duties, in the decision making process and ensuring that the process is well documented.

Beasley v Pilbara Mining Alliance Pty Ltd [2019] WADC 56


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