Sach Fernando of Maxiom Injury Lawyers recently obtained a damages award of $275,000 for pain and suffering and economic loss for a woman who sustained significant right shoulder, lower back and psychiatric injuries. The matter was rejected by a Barrister who considered that it had no prospects of success. Nonetheless, we believed in our client’s case and persisted. The facts of this case are outlined below.
Background:
Our client was a 54-year-old Sri-Lankan woman who was employed as a Food Services Assistant. Throughout the course of her employment, she sustained multiple injuries arising from a number of incidents and her work duties.
In the first incident she was lifting a heavy rubbish bag which contained food scraps out of the bin at her workplace. The bins were usually emptied at the end of each shift by the person who had worked that day, but on that morning, it was still full. She felt pain in her back and symptoms in her right leg from this incident.
Subsequent to this, her employer renovated one of the kitchens that she was required to work in. The kitchen bench was raised to chest height and due to our client’s height, it meant that she then had to repeatedly over-extend her arms and reach above shoulder height. As a result, she sustained injuries to her right shoulder, left shoulder and neck.
Treatment:
Our client underwent variousforms of treatment including physiotherapy and ongoing sessions with a psychiatrist to manage her condition. She underwent an ultrasound guided cortisone injection into her right shoulder.
Her treating Orthopaedic Surgeon recommended that she undergo a decompression and stabilisation surgery of her lower back. She did not undergo the surgery after her experience with the right shoulder treatment and decided to manage her symptoms conservatively
She also completed a Pain Management Program. Despite partaking in the program, her pain had not changed. She was still in constant pain and her restrictions were the same.
The doctors in this matter had diagnosed her with chronic pain syndrome associated with frozen shoulder.
The Proceedings:
Our client initiated a common law claim for pain and suffering and economic loss damages by submitting a Serious Injury Application.
When a Serious Injury Application is lodged with the Victorian WorkCover Authority (“VWA”), they have 120 days to determine whether a Serious Injury Certificate should be granted.
Prior to the 120th date, we proactively arranged an informal conference with the VWA’s lawyers and obtained a settlement.
Pain and Suffering Consequences:
Her consequences include, but are not limited to:
- Experiencing constant pain in her right shoulder and due to the intensity of the pain she sometimes feels faint.
- Her ability to self-care being significantly restricted including drying and brushing her hair and putting on bras and tops.
- Losing the ability to cook for her family. She used to take pride in this and making cakes for her children’s birthdays.
- Being restricted in playing musical instruments such as the flute, guitar and violin. It was distressing for her as she used to derive a lot of satisfaction and relaxation from playing music.
- Feeling worthless and helpless and experiencing suicidal ideation.
Economic Loss:
The medical evidence from both sides was largely unanimous in concluding that her condition is debilitating and that she had no capacity for suitable employment.
Negligence:
We argued that the employer was negligent by reason of the repetitive and heavy duties that she was required to perform. We further submitted that:
- With respect to the first incident, the bin had not been cleaned by the person who had worked the previous day. The rubbish bag was very heavy, and she had previously complained about it to the employer. A reasonably practicable alternativewould have been having smaller bins.
- With respect to her shoulder injury, the benches she was required to use were a lot higher than the ones that were in the downstairs kitchen. She had made complaints both verbally and by writing a letter to the employer about the renovations and the effect it had on her pain. The employer’s response was that there were no lighter duties and so she had to continue working with this setup.
- If she had been moved to the downstairs kitchen or given different duties in another kitchen, her injuries could have been avoided.
- The employer had not completed any risk or ergonomic assessments of the kitchen benches.
If you have been injured at work, we can help. Please contact us on 0488 722 444 or 1800 853 085 for an obligation free discussion about your case.
