Disgruntled injured worker unsuccessfully sues his workers compensation insurer

Jun 27, 2023 | Publication

“Can I sue my workers compensation insurer?” This is a common temptation injured workers have after years of frustration with a broken compensation system. In a recent case, this is exactly what an injured worker did, albeit unsuccessfully.

The plaintiff, Scot George McLaughlin brought proceedings against Employers Mutual NSW Limited, seeking compensation in respect to injuries and losses he had sustained since approximately 1999 from his work injury. The plaintiff was self-represented. The case is novel in that it considers whether a workers compensation insurer owes a worker a duty of care quite apart from its statutory obligations.

The Plaintiff’s Claim

Mr McLaughlin argued that his workers compensation insurer acted in breach of a duty of care which he submitted was owed to him, and further, that it had unfairly applied s 52A of the Workers Compensation Act 1987 (NSW) (WCA) to his detriment.

The plaintiff sustained injuries on or around 16 March 1999 in the course of his employment with High Sierra Windows Pty Limited. He was apparently required to ascend a ladder and whilst he was doing this, the ladder moved, causing him to fall to the ground. The plaintiff then suffered a further injury at work on 18 June 1999. As a result of the accidents, he sustained an injury to his cervical spine, left shoulder and psychological injuries. He also argued that as a result of the injury sustained in these accidents, he developed epilepsy.

The plaintiff pursued a claim for workers compensation. The defendant made payments to the plaintiff in accordance with its obligations under the WCA during the period 1999 to 2003, albeit there was a dispute between the plaintiff and the defendant as to the amount of payments that should have been made and whether the plaintiff was fit for work. The plaintiff argued that during that period he was forced to attend rehabilitation services at the request of the defendant and wrongly forced to return to some form of work on the recommendation of the rehabilitation provider.

In 2002, the matter was heard before Commissioner Hogg at the Compensation Commission. Commissioner Hogg formed the view that the plaintiff was fit to work and that the plaintiff had not been seeking suitable employment and had made no effort whatsoever to seek work within his capabilities.

The plaintiff brought work injury damages proceedings in 2009 in respect to his work injury and the claim was settled. In 2016, the plaintiff sought to have his back surgery paid for by the defendant but was advised by his solicitor that he had settled his rights in respect to the back injury. The plaintiff wished to claim his epilepsy as a disability from his work injury.

The Court’s Findings

The Court ruled that there was no evidence which would support a finding of negligence even if a duty was owed by the defendant.

The Court concluded that “the relationship between the plaintiff and the defendant did not impose on the defendant a duty of care independently of its statutory obligations.”

The plaintiff brought proceedings against his solicitors, alleging negligent advice but was unsuccessful.

The case can be read in full here: https://www.caselaw.nsw.gov.au/decision/178146e9f08af227eb0be7eb

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