Published: 21 March 2019
Author: Stringer Clark WorkCover Law team
How are multiple work-related concussions treated by WorkCover?
You may have heard that in America the National Football League (NFL) has recently reached a settlement of more than US$500 million to pay former players that sustained chronic traumatic encephalopathy (CTE), Parkinson's disease and other injuries (we will use CTE as an "umbrella" term in this blog) sustained due to multiple concussions.
This claim was based on the argument that the NFL knew that their players were being permanently injured by multiple blows to the head and that they did not adequately prevent and treat these injuries, for example, by keeping players in games after a concussion when they knew that a further blow to the head could cause significant damage.
This story has been one of the main factors driving interest and media attention in relation to CTE.
Litigation in Australia over head injuries in sport
Closer to home you may have heard of multiple AFL players, including Jonathan Brown, retiring due to having sustained multiple head injuries over the years playing AFL football and the risk of further damage to them if they were to have another head injury.
Both rugby players and AFL players have pursued and won compensation against their leagues for things such as not informing players of possible long-term consequences of repetitive concussions.
Most professional sportspersons not covered by WorkCover
In Victoria the majority of people playing professional sports are not covered by the WorkCover scheme. Even though there is an employee/employer relationship between them and their team the WorkCover legislation does not cover them unless they are involved in horseracing or harness racing.
The 7.30 report ran a story in June 2018 titled ‘The hidden head injuries plaguing jockeys’. The subject of the show, Dale Spriggs, noted that concussions could come from trackwork, in races and in the barriers before a race commences.
Mr Spriggs is estimated to have suffered between 20 and 30 concussions over his career. Jockeys are required to wear helmets, but ultimately, they can only provide a certain amount of protection and the medical evidence on the preventative benefits is still not settled.
The question is, what is a jockey to do when they suffer from a concussion particularly when the symptoms may seem to be relatively short-lived?
The importance of documenting work-related injuries
As is often the case with WorkCover claims, the more documentation of any injury sustained, the better. In reality, lodging a WorkCover claim or reporting every injury may not be an option that every jockey would pursue, but to have either incident reports or WorkCover claims lodged for each concussion that has occurred would be very useful when it came to assessing a claim for CTE against an employer.
It may well still be possible to bring a claim for CTE or other similar injuries even though there has been no record of head strikes at work if the medical evidence can establish that the condition was caused by multiple head strikes, but it would obviously be a lot easier if there was a paper trail showing all of the times ahead injury was sustained.
Reporting the incidents also assists in alerting the employer to their duty of care to their workers. A good employer should have a concussion protocol to properly manage and minimise the risk of further brain damage due to concussion.
Risks not confined to the sporting arena
Outside the sporting field, there are other industries where concussion or blows to the head occur. People working in the security industry perhaps foremost among them, as well as construction workers, military personnel (though they are covered by ComCare, not WorkCover) and any industry often working at heights, such as roof tilers or roof plumbers.
Workers in these higher risk roles, and family members, should remember that while a concussion may seem to be a short-term issue, depending on the severity of it, or on future further concussions, there comes the risk of CTE later in life. Making sure such incidents are documented can go a long way to proving the work-related nature of any long-term condition.