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:
- The duration of your current employment;
- The nature of the work performed;
- The particular tasks of the employment;
- The probable development of the injury occurring if that employment had not taken place;
- The existence of any hereditary risks;
- Your lifestyle; and
- 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.
