Common law, how pervasive are its tentacles?

Blog - Common law, how pervasive are its tentacles?

Dr Mary Wyatt | Published: March 24, 2015

I recently saw a man in his mid-30s who’d worked in steady employment since leaving school, mainly as a sheet metal worker. He developed a back problem, a disc prolapse with sciatica, and underwent spinal surgery. He couldn’t go back to his previous type of work, but youth and many years of work ahead suggests support to get back into a different long-term line of work is a priority.

Yet there had been almost no focus on rehabilitation. A realistic approach would be 6 to 18 months of retraining, moving him into a different line of work: OH&S, a youth worker, AutoCAD work, becoming a bookkeeper. I don’t know what he would have suited him as a person and neither did he.

We doctors are not all that keen on common law as a way of dealing with work injuries. A focus on blame becomes a palpable part of the patient’s way of talking about their health problems. Perceived injustice makes it less likely the person will get back to work, and it makes it more likely they won’t do as well with their particular health problem, whether they have a sore shoulder or a back problem.

But common law also influences the behaviour of others in the comp system.

Common law means weekly wages will come to an end. If the claim is going to be settled at common law, does this mean the claims system is less likely to initiate and focus on rehabilitation?

For the ex-sheet metal worker, the march was on to the end of his 2 ½ years of weekly wage payments, and the focus was on his common law claim.

After settlement, he might get back into the workforce or he might not. He might end up, like so many, receiving a total and permanent disablement payout from his superannuation fund and in the years to come moving on to Centrelink or disability payments.

It’s hard to know whether claims managers let cases like this slide because they have so much else on their plate, or because they see the end is in sight because of the way the system is designed. Or because they think lawyers might work against return to work initiatives (which unfortunately happens).

Either way, the stated intent of the system of rehabilitation and return to work seems to fade into the background in common law.

I wonder if the feedback loop on these cases makes it to the regulator.