Personal Injury Claims: Impact of Pre-Existing Injuries

As human beings, it is common for us to have sustained pre-existing physical and or psychological injuries. However, these injuries do not preclude you from receiving compensation from a personal injury claim.

What is the threshold for an injury to be compensable?

You are entitled to compensation from Workcover if your employment was causative or was a ‘significant contributing factor’ to your injury. The following factors are taken into account when determining whether your employment was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury:

  1. The duration of your current employment;
  2. The nature of the work performed;
  3. The particular tasks of the employment;
  4. The probable development of the injury occurring if that employment had not taken place;
  5. The existence of any hereditary risks;
  6. Your lifestyle; and
  7. Your activities outside of the workplace.

Similarly, you are entitled to compensation from the TAC if the injuries you sustained in your transport accident is a cause to an aggravation of a pre-existing injury. The accident does not need to be the only cause or the dominant cause.

Whether you have injured yourself at work or on the road, if the accident has rendered a pre-existing injury symptomatic, then you are entitled to compensation. This will be the subject of medical opinion.

How does my pre-existing injury impact on my entitlement to damages?

In order to receive common law damages, you are required to prove that you have sustained a ‘serious injury’ and that another party is negligent.

The most common way in which individuals are awarded a Serious Injury Certificate for pain and suffering is by satisfying that the consequences from your physical injury are more than significant or marked, and at least very considerable. If you have suffered a psychiatric injury, you must establish that you suffer consequences from your injury which can be considered more than serious to the extent of being severe.

If you have suffered an aggravation of a pre-existing injury, you must establish that the additional impairment as a consequence of the aggravation meets the serious injury threshold. This is done by separating the consequences of your compensable injury from the pre-existing injury. A Judge determining your entitlement will perform an analysis of your life before and after your compensable injury.

The case of Noori v Topaz Fine Foods [2018] VSCA 323, considered the necessity to separate injuries for the purposes of determining whether an injury satisfied the serious injury threshold.

In Noori it was found that it was neither necessary nor appropriate to disentangle the consequences of the Plaintiff’s pre-existing psychiatric condition. The Court determined that whatever limitations had resulted from his pre-existing condition, he had at least been able to be gainfully employed up to that point.

If you have been injured at work or on the road, please contact us on 1800 853 085 or 0488 722 444 to discuss your potential entitlements. We are a specialist no win, no fee personal injury law firm committed to achieving the maximum compensation you deserve.

How are Pain and Suffering Damages Assessed in Personal Injury Claims?

Pain and suffering damages are designed to compensate individuals for their hurt and loss of enjoyment of life following an injury. Due to the individual circumstances of each case, there is no set formula by which these damages are assessed. However, a potential assessment can be drawn from other comparable cases.

The Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon sets out an analytical approach for assessing pain and suffering by identifying the individual’s experience of pain and the disabling effect of the pain.

Understandably, one’s experience of pain is subjective and an objective assessment of that subjective experience is required.The following factors will be largely considered when assessing pain and suffering:

  1. The age of the individual;
  2. The “consequences” as a result of the injuries;
  3. The treatmentundergone to mitigate the loss;
  4. The present treatment and medications taken to manage the injuries;
  5. Medical evidence regarding the debilitating nature of the injury;and
  6. Any pre-existing injuries or post-event injuries.

What consequences are considered when assessing pain and suffering?

Pain and suffering consequences are wide-ranging and can include:

  • Functional, cognitive and psychiatric limitations;
  • Sleep difficulty;
  • Restrictions with self-care;
  • Restrictions with household and domestic duties;
  • Impact on recreational and social activities;
  • Impact on relationships and intimacy;
  • Restrictions with capacity to work; and
  • Inability to continue with activities that previously provided enjoyment.

Recent pain and suffering damages awards

Duman v Kaini [2020] VCC 896 – A 53-year-old man involved in a transport accident developed major depressive disorder and chronic pain disorder. His condition necessitated transcranial magnetic stimulation treatment and electroconvulsive treatment. As a consequence of the accident, he developed interferences with his memory, concentration, motivation and sleep. He was awarded $300,000 for pain and suffering.

Di Pietro v Stockland Development Pty Ltd [2020] VCC 1869 –A 53-year-old worker was trimming a hedge when he stepped on a rock and fell. He sustained a serious lower back injury and underwent a microdiscectomy and laminectomy at the L5/S1 level. He was taking painkillers in the form of Tramadol, Lyrica and Ibuprofen. He was considered a stoic individual who learned to live with the pain. He was awarded $185,000 for pain and suffering.

Meech v Ballan & District Soldiers Memorial Bush Nursing Hospital & Hostel Inc [2020] VCC 854 – A 55-year-old woman slipped on a wet and slippery outdoor landing in the course of her employment.  She sustained a left knee injury and subsequently underwent a total left knee replacement surgery. Her treating orthopaedic surgeon opined that the fall may have aggravated underlying arthritis. Following her injury, she had difficulty kneeling, squatting, completing household and domestic chores and a number of recreational activities. She was awarded $110,000 for pain and suffering.

When am I entitled to pain and suffering damages?

Under the WorkCover and TAC schemes, you are entitled to pain and suffering damages if you have sustained a serious injury (significant injury for public liability claims) and negligence can be attributed to another party.

Under the WorkCover and TAC schemes, you are entitled to pain and suffering damages if you have sustained a serious injury (significant injury for public liability claims) and negligence can be attributed to another party.

What is Vicarious Liability?

Employers have a non-delegable duty to take reasonable care to avoid the foreseeable risk of physical or psychological injuries to their employees. This duty extends to ensuring that their employees act in a safe and reasonable manner.

Vicarious liability refers to the way the law transfers liability onto employers for the negligent acts or omissions of their employees acting “in the course of employment”.

What does “in the course of employment” mean?

This means that the negligent actions must have a sufficiently close connection or nexus with the work for which the employee was required to perform.

An example of this is if you were a builder and a ladder fell onto your head, which had been inadvertently left unsecured by another employee. In these circumstances, the placement of the ladder by the employee can fall within the scope of their employment.

Criminal actions of employees

Depending on the circumstances, employers can also be found variously liable for their employee’s criminal actions. The evolution of common law principles has provided clarity as to how Courts view these circumstances.

In the 1999 case of Bazley v Curry, the Supreme Court of Canada decided that there was a sufficient connection between the employer’s creation or enhancement of a risk and the employee’s criminal act.

Similarly, the High Court in Prince Alfred College Incorporated v ADC[2016] HCA 37, espoused the “relevant approach” test –an employee’s criminal action does not absolve the employer of vicarious liability. This case held that one must look at the employee’s role and the nature of their responsibilities when determining whether the job gave the occasion for wrongful conduct.

In contrast, the 2017 case of Osmond v Highway Traffic Control Ptyprovides authority that while the employment gave opportunity for sexual conduct, it was otherwise unconnected with the employee’s tasks and obligations. Accordingly, the employer was not vicariously liable.

When is vicarious liability considered in compensation claims?

In order to receive common law damages, one of the requirements is to establish that your employer was negligent. Vicarious liability can be one of the ways in proving that your employer was negligent.

If you have sustained a workplace accident due to another colleague’s actions, please contact us on 1800 853 085. We pride ourselves on investigating and understanding your injuries in order to maximise your entitlements.

Rejected WorkCover claim turns into 130 weeks of weekly payments

Maxiom’s Shane Don and Sach Fernando recently obtained a settlement of 130 weeks of weekly payments and medical and like expenses paid to date and ongoing for a woman who sustained severe psychiatric injuries.

Background:

Our client was a 52 year old National Credit Manager. Throughout the course of her employment, she was bullied, sexually harassed and racially vilified by nine male co-workers. These incidents included but were not limited to co-workers:

  1. Wolf whistling when they walked past her.
  2. Changing their phone ringtones to whistling sounds.
  3. Referring to her as “Mus-slime”.
  4. Excluding her from work events.
  5. Stealing her personal items.
  6. Telling her she should go work in the toilet or a cardboard box.

Injuries:

As a result of the treatment she endured, she sustained psychiatric injuries. Our client was diagnosed with major depressive disorder along with anxiety disorder. She became hypervigilant and particularly sensitised when hearing any whistling.

The Dispute:

In 2018, our client had lodged a WorkCover claim. The WorkCover insurer rejected her claim on the basis that her injuries arose wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner. The insurer alleged that her injuries emanated from the process of investigations performed by the employer subsequent to her complaints.

Our client had sought legal advice from other law firms and was advised that they could not assist her.

Following her consultation with us, we initiated Magistrates’ Court proceedings to dispute the Workcover insurer’s decision.

The Proceedings:

Our client was entitled to compensation if the work-related bullying and harassment was causative of or was a significant contributing factor to her psychiatric injuries.To this extent, medical evidence from both parties was largely unanimous in concluding that this was the case.

We further argued that the Defendant’s defence of ‘reasonable management action’ would fail. We submitted that our client had made multiple complaints to her employer regarding the bullying behavior and that her employer had not adequately enforced the directives that had been implemented following her complaints.

Following negotiations with the Defendant, we were able to obtain a settlement that was important to supporting our client’s psychiatric condition.

If you have been injured at work, we can help. Please call us on 1800 853 085 or 0488 722 444 for an obligation free discussion of your case.

Dependency Claims – WorkCover

Losing a loved one due to a workplace injury can be a very traumatic experience. You may experience feelings of profound sadness, hopelessness and uncertainty. In circumstances where your partner or family member was the breadwinner, you may also be placed under significant financial strain.  It is important to know there are a number of entitlements that you can pursue as a dependant.

Am I eligible to make a dependency claim?

Generally, there are three categories of ‘dependants’ eligible to make a dependency claim:

  1. Dependant partner – A partner, who was wholly or mainly dependent on the deceased’s earnings. A partner who resided with the deceased at the time of death is deemed a dependant.
  2. Partially dependant partner – A partner, who was to any extent dependent on the deceased’s earnings.
  3. Dependant child –A child under 16 or under 25 and a full-time student or apprentice who was dependent on the deceased (including an orphan child or child born after the death of the deceased).

Dependants may be other family members or non-family members.

What are my entitlements?

Once WorkSafe accepts that you are a dependant and that the death was work-related, you will be entitled to the following:

1. Weekly Pension

As a dependant partner, you may be entitled to a weekly pension of up to $2,570* per week. For the first 13 weeks after the death, you are entitled to 95% of your late partner’s pre-injury average weekly earnings (PIAWE). From 14 weeks to three years, you are entitled to 50% of your late partner’s PIAWE. If there is more than one dependant partner, this amount will be equally shared between partners.

Dependent children may also receive a weekly pension of 5% of the deceased’s PIAWE. This will commence 14 weeks after the date of death until they turn 16. After they turn 16, the pension will continue until the age of 25, if they are a full-time student or apprentice.

2. Funeral Expenses

WorkSafe will pay the reasonable cost of burial and cremation services, up to $15,230.

3. Family Counselling Services

WorkSafe will pay the reasonable cost for family counseling services, up to $6,820 for the entire family.

4. Lump Sum payments

In addition to the weekly pension, payment of a lump sum up to $644,640* will be provided, to be shared between all eligible dependents.

5. Damages under the Wrongs Act

Pursuant to Part III of the Wrongs Act 1958 (Vic), you are entitled to make a claim for past and future loss of financial dependency and services. You are able to recover damages of up to $1,111,180*if it can be established that the employer’s negligence caused the injuries that resulted in the death. Any statutory benefits that you received from the dependency claim will be reduced from an award of damages.

Are there time limits to making my claim?

Yes. You have two years from the date of death to lodge a dependency claim. You have six years to make a damages claim for financial dependency.

If you have lost a partner or family member as a result of a work-related accident or injury, please accept our deepest condolences. We understand that this is a difficult time and are here to help. Please contact us on 1800 853 085 so that we can pursue the entitlements that you deserve.

* The figures provided are correct as at 1 July 2021.

Compensation following a Slip and Fall

Slipping and falling in a public place can be a particularly embarrassing experience. It is however the resulting injury which may leave you with permanent and significant consequences. Depending on the severity of your injury and how your injury was caused, you may be entitled to compensation.

What should I do following my fall?

  1. Seek medical attention – Call an ambulance if necessary and consult your doctor.
  2. Report the accident – Immediately report the accident to the manager of the building or business.
  3. Take photographs – Take photographs of the accident location and of your injuries.
  4. Obtain details of any witnesses – Obtain their contact details if a statement is needed in the future.

What are my potential entitlements?

  1. Pain and suffering damages – Please refer to the answer below, which outlinesthe requirements to pursue damages for your pain and suffering.
  2. Past and future medical and like expenses – Keep copies of any receipts for costs incurred as a result of your injury.
  3. Past and future loss of earnings damages – Create a logbook of all dates you were unable to work due to your injury.
  4. Gratuitous Care – You can claim unpaid domestic care, provided it has been for at least 6 months and 6 hours per week.

What do I have to prove for pain and suffering damages?

1. Significant Injury Threshold

You must satisfy that you have sustained a significant injury pursuant to the Wrongs Act 1958 (Vic). This means that you must establish a whole person impairment rating of 6% or more for physical injuries (except spinal injuries which is 5% or more), or 10% or more for psychiatric injuries.

Your level of impairment will be assessed in accordance with the Guides to the Evaluation of Permanent Impairment (4th edition) for physical injuries and the Guides to the Evaluation of Psychiatric Impairment for Clinicians for psychiatric injuries. The assessment of your impairment can only be performed once your condition is considered permanent and stable, and is usually performed after 12 months from the date of your injury.

2. Negligence

It must be established that the occupier breached its duty of care in failing to ensure that the premises were safe. The occupier’s breach can be proven in circumstances where it was reasonably foreseeable that their inaction or action unnecessarily exposed you to a risk of injury. In making this determination, the following can be considered:

a. Whether the occupier had identified the potential hazard.

b. What steps were taken by the occupier to eliminate the hazard.

c. Whether the occupier had notified people about the potential hazard, i.e. were warning signs erected.

d. Whether lighting around the accident location was poor.

How long do I have to makea claim?

Your claim must be lodged within three years from the date of the accident.

If you have suffered an injury following a slip and fall accident, please contact us on 1800 853 085.