Have you been injured? Tell your Doctor!

Wednesday 4 September 2019
Tina Toutzaris-Sabo

If you have been injured at work, regardless of whether you think your injury is serious, it is important to visit your doctor. At this visit (preferably your first since the injury) you should discuss your symptoms, how the injury occurred, the impact on your life and whether it is work related.

If your injury or condition has developed over a period of time then you should report this to your doctor and outline the work duties you believe have caused or contributed to your symptoms.

Why is this important?

When you file a claim under WorkCover and/or for a lump sum payment you are required to establish that your injury is work related. In some claims, it must be established that your employment was a “significant contributing factor” to that injury.

Establishing the cause of your injury can more easily be achieved when you have an accurate and consistent record of your injury, and it was taken shortly after it has occurred.

Case study

Yilmaz v Specialty Fashion Group Pty Ltd VSCA 100 [2019] highlights the importance of reporting a work related injury to a treating doctor.

Ms Yilmaz was employed as a sales person from around November 2011 and March 2013. She alleges she injured her lower back during the course of her employment. Pin-pointing a specific event, she noted that on 28 June 2012 she was pulling a rack of clothes weighing about 30kgs. She also relies on the general heavy nature of her duties including constant and repetitive lifting, bending and carrying of clothes including boxes and deliveries.

Ms Yilmaz made an application to the County Court seeking a serious injury certificate for ‘pain and suffering’ and lost income. Without a serious injury certificate, she could not sue for these “damages”.

The case was heard in the County Court over three days and ultimately the Court dismissed Ms Yilmaz’s application. Ms Yilmaz then appealed to the Victorian Court of Appeal (VSCA) where it concluded that the appeal has “no real prospect of success.”

Ms Yilmaz was unsuccessful and consequently unable to sue her employer for her low back injury.

Why was Ms Yilmaz unsuccessful?

The critical reason the Judge found that Ms Yilmaz did not have a work related injury was because she “had not given any such history to her treating general practitioners at times when one might reasonably have expected her to have given such a history had she sustained injury in the circumstance she now claims.”

The Judge found Ms Yilmaz to be an “unimpressive witness” and “many parts of her evidence were unreliable and lacking credit – particularly in relation to the occurrence of compensable injury.”

It is also worth noting that Ms Yilmaz initially reported a single incident occurring on 28 June 2012, however in her affidavit she alleged that two further incidents occurred over the course of that year.

This did not assist her case. She was also adamant that she reported the circumstances of her injury to her doctors, however this was not supported by the medical records nor the evidence of her two GP’s, who were cross examined.

The Court was also not persuaded by physiotherapy records in December 2012 which referenced treating an injury from a June 2012 work incident. This record was not enough to establish that there had been a work related injury.

How can this situation be avoided?

  • Complete an incident form with your employer after your injury and/or attend your medical clinic and report the injury to your doctor.
  • Be consistent at all times. Keep a diary to assist you, if necessary.
  • Ensure all the facts are disclosed to your lawyers at the earliest opportunity. Hidden surprises can be detrimental to the case.
  • If in doubt, seek legal advice as soon as your injury occurs. We can also assist you to lodge a WorkCover claim.

To speak with one of our expert lawyers about your rights and entitlements under WorkCover call (03) 9321 9988.

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