There is perhaps no clearer case of an injury that arises out of or in the course of a worker’s employment, than the case of a worker who falls off a ladder at work and breaks his or her leg.
But what happens if you sustain a work injury that is internal, that is not visible to others, and that develops over a period of time, for example a psychological injury or an injury to the stomach or ear?
The recent South Australian Employment Tribunal decision of Eales v Return To Work SA has dealt with the standard of proof required to prove that an injury arose out of or in the course of employment.
In that case, Mr Eales (a network administrator at Hewlett-Packard Australia) lodged a workers compensation claim for a high pitched sound that he heard in his right ear, even after leaving work for the day.
As part of his employment, Mr Eales wore a headset on his right ear, in order to take telephone calls and provide assistance to clients. As time went on, Mr Eales noticed that the high pitched sound that he could hear in his right ear during the work day continued when he removed the headset and returned home for the day. The noise eventually became constant.
Mr Eales was subsequently diagnosed with tinnitus in his right ear.
Mr Eales’ workers compensation claim was rejected on the basis that there was insufficient proof that the tinnitus arose out of or in the course of his employment.
In this case, Deputy President Gilchrist heard evidence from Mr Eales, Dr John Tomich, Dr David Matison and Professor Ronald Gristwood (all Ear Nose and Throat surgeons).
In coming to his decision, Deputy President Gilchrist considered that “Dr Tomich and Dr Matison approached [the] case as scientists and in proffering their opinions they adopted the standard of scientific proof”. Deputy President Gilchrist later commented on the difference between the burden of proof in a civil case, on the balance of probabilities, and the higher standard required to prove scientific facts.
After considering the evidence, and noting that “the position is far from certain”, Deputy President Gilchrist conducted a “common sense evaluation of all the evidence” and held that Mr Eales proved on the balance of probabilities, that the tinnitus was caused by his employment at Hewlett-Packard.
Accordingly, the decision rejecting Mr Eales’ claim for compensation was set aside, and Deputy President Gilchrist held that Mr Eales is entitled to recover the medical and like expenses relating to his tinnitus.
So if you lodge a workers compensation claim which is rejected on the basis that you have failed to produce sufficient proof that the injury arose out of or in the course of your employment, call Duncan Basheer Hannon today for advice on 1800 324 324 or contact us via our contact page.
Mr Eales was represented by Aleksandra Spasojevic and Patrick Boylen at DBH.
Click the link below to read the full decision in Adelaide Now.