Employee "staged" injury for time off: the importance of investigating injuries and engaging with claims processes

When an employee is injured in the course of their employment, in addition to wanting to support the employee and help them recover and return to work, it is important that businesses take steps to understand how the injury occurred. Understanding what occurred, supports the business not only to take reasonable management action to manage the injury and, depending on the cause, prevent future injuries, but also to be in a position to respond to claims, including workers' compensation claims, and any investigation that may be undertaken by a Regulator.

If a workers' compensation claim is made, it is important that employers take an active role in the claims process before a workers' compensation insurer makes their decision as to whether to accept a claim. Active participation and management of a claim from the outset can support defending against a claim but also, if the claim is accepted, any appeal and/or common law personal injury claim. It can also support the insurer manage the claim with the employee in relation to benefits and return to work.

The recent case of St Michael's Association Inc v T [2020] TASWRCT 35 demonstrates the importance of proactively investigating injuries and engaging with the business' workers' compensation insurer where there are concerns about a claim.

Tribunal finds that injury "implausible"

An employee (T) was a disability support worker for St Michael's Association Inc (St Michael's) in Tasmania. T was ten pin bowling with two clients when she went to retrieve a bowling ball and tripped on a carpet edge. T alleged that this trip caused her to fall into a nearby counter resulting in a fractured arm.

T made a workers' compensation claim.

While St Michael's accepted that T had fractured her arm, it had concerns with T's allegation as to how the injury occurred, including in circumstances where T had asked for time off the day before the injury and had previously made 9 claims over an eight year period.

St Michael's disputed the claim and engaged an external investigator to investigate T's injury. The investigation found that:

• the ball T was seeking to retrieve was some 80cm before the carpet edge;
• CCTV showed T moving rapidly across the carpeted floor for 5.1m before hitting the desk, which required a level of momentum that she would not have had from tripping on a carpet edge while walking; and
• T may have had a motive to gain time off work based on past claims made and work ethic, and staged the incident.

St Michael's also obtained a report from Dr Barry Gilbert, an expert in "biomechanical and occupational medicine." While Dr Gilbert did not comment on whether T deliberately fell, he considered that T's injury was not consistent with a simple trip and T had the capacity to take evasive action to avoid colliding with the counter.

St Michael's successfully disputed the claim before the Workers Rehabilitation and Compensation Tribunal, with Chief Commissioner Clues finding that T's injury was "implausible, most unusual, not consistent with a trip and may not have been an accident".

Without the evidence obtained from the investigation of T's injury, St Michael's would not likely have obtained this outcome.

Lessons for employers on investigating injuries

Not engaging with your insurer and disputing claims where there are concerns and evidence to demonstrate that a claim should not be accepted can result in a larger number of workers' compensation claims being accepted. This can impact the business by resulting in:

• insurance premium increases;
• common law personal injury claims by employees;
• difficulties in defending against a common law personal injury claim due to missed opportunities to collect evidence, as common law claims are often only made some years after the injury is sustained; and
• risks of complaints to the Regulator under work health and safety legislation.

However, employers can manage the risk of claims and position themselves to respond effectively when claims are made, by having processes in place to address work injuries, including by:

• having policies and procedures in place, accompanied by staff training, to support reporting, notification and investigation of workplace injuries;
• ensuring that incident reports are completed for injuries and signed by the injured employee;
• promptly investigating injuries to obtain evidence of what occurred, including from witnesses, CCTV, and any other sources;
• engaging with your Health and Safety Team and/or Human Resources early to support incident response and investigation; and
• taking legal advice if needed.

If a workers' compensation claim is made, it is important that employers treat it seriously and actively participate in the claim process by:

• confirming as early as possible with your insurer that the business wishes to respond to the claim and/or disputes the claim;
• maintaining communication and engagement with your insurer throughout the claim process;
• providing submissions and evidence that are relevant to the claim; and
• if a claim is accepted, engaging with your rehabilitation provider and employee to support return to work and rehabilitation.

Also, if you don't agree with the decision made by the insurer, consider your review and appeal options.