Waiting for Serious injury
For some injured workers, it is not immediately obvious whether they suffer from a serious injury. Often an injury will be troublesome and cause some ongoing pain and restrictions, but it is uncertain whether it will meet the strict legal test of “serious injury”. As an injured worker only gets to apply for a serious injury once it is important that the claim is not made prematurely.
In a recent case , a young workcover victim, in his late 30’s, who had been under a solicitor’s care for many years, had initially injured his back at work lifting a heavy device in 2001. He had a short time off work and then despite some ongoing pain in his back, returned to normal duties. He continued on like this for many years. At times he would have flare ups of back pain that kept him out of work for a few weeks a time, but mostly he was able to manage things. However by 2010, his condition had deteriorated so badly that he required surgery to be performed to his back. He has, however, since been able to return to work and therefore his claim would be for pain and suffering only (and not for economic loss).
Whilst the injured person was initially very keen to settle the claim and get compensation, his lawyers advised him to wait because- from their experience- they feared that he may still deteriorate. Sadly for him that is what happened. But by having held off his claim, it meant that when he eventually did proceed with it, he was able to get proper compensation for all of his pain and suffering, including the need for surgery.
In my own case, although I have been whingeing about not being able to get through the Medical Panel’s impairment assessment for 3 years in a row because the injury was deemed “unstable”, looking back I am so glad I did not pass, as my injury has since then deteriorated so much that I now already have received close to 30% from the workcover insurance (my first NOA -Notice of Assessment was 19%!!!) alone – just add to that a fair assessment and I will be well over 30% and entitled to pursue a common law damages claim!
Lesson: If you are able to manage financially, that is: survive on your weekly payments; or if your are still working part time (or full time) and your injury involves particularly a back injury, spine, neck or a severe orthopedic injury (i.e.hip, shoulder), chances are that you WILL get worse (think arthritis, think failing of previous surgery, think additional wear and tear, overuse of weakened limb/area) then PLEASE hang on and DON’T RUSH to settle your claim (as in permanent impairment assessment and lumpsum)! You ONLY GET ONE (1) GO AT IT!!!!
Just imagine the following: you injured your shoulder at work, didn’t seem too serious initially. You had routine surgery. Recovered. Went back to work. A few months later you noticed that your shoulder was getting unstable again…You did not think much of it (hey, you had surgery a few months ago)and just carried on working. Had your impairment assessment, got 12 % total body impairment and what something like $25,000. That’s it. Paid off some debt, your lawyer and had a well deserved holiday. Then the problems started – your shoulder really started to hurt. Went back to the doc , had more scans and now they tell you you they did not pick up that you had an additional injury to the shoulder (let’s say a backwards dislocation and torn labrum). You need more surgery. After the surgery you bloody well get an infection in the shoulder, need wash outs and debridements and all surgical repairs fall apart…You’re off work for months, then for a year, then two years. The shoulder is reconstructed but it fails. Now you need a shoulder replacement (prosthesis) and have been told that you will never work again. Well, my friend, you are truly stuffed. You had accepted the permanent impairment some years ago and received your pathetic lumpsum (now long gone). You are NOT entitled to a common law damages claim for pain and suffering or economic loss because you accepted a 12% total body impairment, and you need 30% (which you would easily get now). See what I am saying?
This has happened to quite a few injured people and it is extremely devastating for them, and in a way unjust for there should be a way in our laws that allows for “unforeseeable deterioration” too.
Time frames to lodge a serious injury claim
An injured worker has 6 years (from the date of the injury) to lodge a serious injury claim in Victoria. As long as the worker’s limitations period is protected, there should be no rush to lodge a serious injury claim – unless of course the injured worker wants to.
Sadly for most workers, injuries frequently get worse over time and for the serious injury consequences to be fully apparent, it is often better not to rush these cases. This above story and my story is reminder of that.