Often people ask us if they can make a claim for negligence, or a claim for their pain and suffering. This sort of claim is called a common law claim. If you are a worker you can make a common law claim if your injury/s has been caused by someone else’s negligence and if you have suffered a serious injury. If negligence and serious injury can be proved then you can claim damages.
We have recently received a number of emails from Victorian bewildered injured workers, who are certified unfit for work, who have no work capacity (for the foreseeable future or indefinitely), however scored far less than the “deemed” 30% whole person impairment (WPI) to qualify for “serious injury” under the Act’s deemed test, and to allow to pursue pursue a common law damages claim. Some of those injured workers have been assessed with a WPI as low as 5% – courtesy of our outdated AMA 4th Edition Guidelines – even though they actually suffer from what could be defined as a “serious injury” (under the narrative test).
This article is devoted to those crippled injured workers and outlines – and highlights- that many such injured workers can be successful at having their injury considered “serious”, and successfully proceed with a common law damages claim and be fairly compensated for pain and suffering and possible economic loss.
Qualifying for serious injury in Victoria using the narrative test
Let’s take a sample case
An injured worker who suffers from a very bad back injury and subsequent significant secondary psychological injury, following a workplace accident, has been assessed by a workcover insurer impairment assessor, or by a medical panel, with a 5% WPI, pursuant to section (s)98C of the Act. In addition the injured worker was also given 22% secondary psychological injury (which, however do not count toward the total WPI). The workcover insurer then makes an offer of around $11,000 (lumpsum) – representing 5% impairment – pursuant to the AMA Guides (4th Ed) for the injured worker’s back injury and psychological condition. (note: in order to successfully claim a lunpsum in Victoria for permanent impairment (under s98C of the Act), physical injuries must normally amount to a 10% or more WPI when assessed in accordance with the AMA Guidelines 4th Ed, except in certain circumstances where 5% is allowed, such as for arms, spine and leg injuries)
In some cases -such as in this real sample case -the injured workers’ lawyer may advise not to dispute the workcover insurer impairment assessment at a Medical Panel, as the injured worker is unlikely to receive a higher score (%WPI), or worse, that a Medical Panel may find a lower assessment in terms of %WPI, and the injured worker is then unable to appeal this decision as medical panel assessments are final and legally binding.
So,the injured worker is left with a 5% WPI and a pathetic lumpsum, even though she has been medically assessed as unfit for work for the foreseeable future (indefinitely) – and doomed to a life of extreme poverty and ongoing/unending disputes with our adversarial workcover system in terms of weekly pay and/or medical treatment authorisations.
The AC Act (Vic) allows a seriously injured worker to sue for common law damages where the other party’s negligence caused or contributed to the work-related injury. Rather than providing continuing support (as weekly payments of compensation do), common law damages provide a “one-off” lump sum payment to an injured worker.
There is nothing in the AC Act that prevents an injured worker from seeking access to both statutory benefits and common law damages. However, if a worker obtains common law damages, the worker cannot receive any future statutory benefits for the same kind of loss (apart from payment for medical and like services).
An award of common law damages will also be reduced by the amount of any statutory benefits already received.(AC Act, s 134AB(25)).
Access to common law damages is currently restricted to injured workers who have sustained a “serious injury”. This means that the worker’s injury must satisfy either the “deeming” test or the “narrative” test.
The deeming test (aka quantitative test)
To satisfy the deeming test the injured worker must have a whopping WPI of 30% or more assessed in accordance with AMA-4.38 (AC Act, s 134AB(15).)
Under this test, your percentage score of impairment under the American Medical Association Guides to impairment and/or the psychological guides must be 30% or more. It is possible to aggregate or combine an impairment rating from a physical injury with an impairment rating for a psychological condition even though the psychological impairment on its own is less than 30%. For example if there is a physical impairment of 20% and a primary psychological impairment all 15%, then the combined value of those impairments will be 32%. (Impairment scores are not added but combined using a special formula). These guides are very complex.
The narrative test (aka qualitative test)
Under the “narrative” test an injured worker must have suffered:
- a serious permanent impairment or loss of a bodily function; or
- a permanent serious disfigurement; or
- a severe permanent mental disorder or severe long term behavioural disturbance; or
- loss of a foetus.
[Mental disorders or behaviour disturbances are assessed separately from physical injuries for the purpose of determining whether an injury satisfies the narrative test.(AC Act, s 134AB (38)(h).)]
This test is an alternative test to the quantitative test. It does not rely on a percentage score but rather relies on an assessment of the effect of the injury on your quality of life. This test is referred to as the narrative test as the WorkCover legislation narrates a series of criteria that must be taken into account. The criteria are any one of the following:
- Serious permanent loss of a body function
- Severe permanent behavioral or mental disturbance
- Permanent serious disfigurement
- Loss of a fetus
As this is a qualitative test, it requires a careful assessment of the full occupational, social, domestic, financial and psychological effects of your injury. In considering this test courts will look at many factors in determining whether an injury may be considered to be serious or not. Each case must be assessed on its own information about the full effects of an injury on the person.
This qualitative test is a very complex test. There is considerable case law about the way in which this test must be applied. The test will only canvass the permanent effects of injury and not the temporary effects of an injury. It is also clear that the physical and psychological effects cannot be combined to establish a serious injury. This means that either the physical effects or the psychological effects in their own right must constitute a serious injury. The psychological effects of an injury must be considered as ‘ severe ‘.
Relatively few workers have been able to access common law through the deeming test, because AMA-4 provides quite low impairment ratings when compared to its predecessor – AMA-2. In particular, spinal injuries (which make up a large percentage of workers’ compensation claims) rarely score over 10% WPI when assessed under AMA-4. (the average is between 5 and 8%)
Also a significant body of case law has developed around the narrative test, providing a degree of stability and certainty as to its application.
[Workers seeking damages for economic loss must also demonstrate a permanent loss of earning capacity of 40% to access that type of damages under the narrative test.(AC Act, s 138AB(38)(e).)]
The current deeming and narrative tests perform an important function for the workcover insurer ($$coffers). They ensure that common law damages are available only to the most seriously injured workers. The current tests also operate as a gatekeeper that helps to protect the ongoing viability of the scheme.
A high number of serious injury applications are initially refused by the VWA and subsequently accepted during the litigation process.
Let’s go back to our sample case
The injured worker in our (real) case, understand from his lawyer that her claim has been assessed as suffering an impairment of less than 30% (as she received 5%). She also understands that if she would like to proceed with a common law damages claim, she would be required to show that she suffered a serious injury, under either the deeming test (which is impossible as she did not receive 30% WPI or more),or…. under the narrative test.
Does this injured worker have a serious injury?
The injured worker’s lawyer believes she that she would be considered to be suffering of a serious injury (under the narrative test) and that it is their opinion that she should proceed with a common law damages claim. Why does her lawyer feel she will be considered by the court as suffering “serious injury”? Simple: the injured worker has been assessed as having no capacity for work (indefinitely), suffers from medically certified serious, crippling pain, and her surgeons believe she can not undergo further surgery to her spine (back). In addition she suffers from 22% secondary psych injuries, rendering her also unable to work.
This injured worker was found, by the Court, to indeed suffer from a “serious injury” (under the narrative test) and because she had a very strong case of employer negligence, she was successful at her common law damages claim, and was awarded $120,000 for pain and suffering and $180,000 for economic loss.
Let’s re-sumarise it all
Do I have a serious injury claim?
It is necessary to demonstrate that a serious injury has been sustained before an injured person can bring a claim for common law damages under the Workcover scheme.
To be certified as having sustained a serious injury an injured person must meet one of two tests under the Workcover legislation.
The first test is referred to as a the ‘deeming’ or ‘quantitative’ test because it is based on counting an injured person’s impairment under clinical guidelines (AMA 4th ed). The second test is referred to as a ‘narrative’ or ‘qualitative’ test because it is designed to assess the individual impact of an injury and its consequences. In particular, the test focuses on the effects of an injury on a person’s quality of life or inability to earn income.
You can make a serious injury compensation claim if you’ve suffered a serious injury due to the negligence of others. If an injury has affected your quality of life or impacted on your ability to work it is possible that you will satisfy the legal test of ‘serious injury’.
Serious injuries can include:
- A bulging disc in your spine
- Torn tendons in your shoulder
- Cartilage or tendon damage in your knee
- Scarring, burns or disfigurement
- Fractured bones or vertebrae
- A head injury
- A brain injury
- A spinal cord injury
- A severe psychiatric disorder
- Loss of or altered vision
What are the requirements for a serious injury claim?
A serious injury claim is brought against a negligent party who you believe may have caused or contributed to your injury. In order to succeed with such a claim there are three essential elements that you must establish:
- That you have a serious injury within the meaning of the Workcover legislation
- That there was negligence or fault on the part of another party
- That you have suffered loss and damage
If you are unsure, seek legal advise you about your rights to make a serious injury compensation claim
What can I claim for a serious injury?
If you are successful in a claim for damages, you are able to claim for the pain and suffering that you have endured and will continue to endure as a result of your injuries. In some circumstances, it is also possible to claim damages for lost income. Any calculation of damages can only occur following serious injury certification and the proving of negligence as the cause of your injury.
What is the estimated compensation amount?
The amount of compensation you receive is based on factors such as the nature and extent of your injuries, your age, your loss of earnings, your likely loss of earnings in the future, the extent and length of any incapacity for work and the level of the pain and suffering consequences that you have endured.
When your injuries have stabilised, it will be necessary to obtain expert medical evidence about the effect the injuries will have on you in the future.
How long will it take to finalise my serious injury claim?
Serious or multiple injury claims are complicated and require careful consideration of complex medical and legal issues. It’s important that your injuries stabilise after any accident so that we know how they may affect you in the long term.
The complexity of time limits involved in a serious injury claim makes it critical that you obtain independent legal advice about your situation immediately. You shouldn’t wait for your injuries to stabilise.
If you are successful at the deeming/quantitative test (30% WPI or more) then obviously your claim will be “fast-tracked’ as you won’t have to go to court to apply for a serious injury certificate under the narrative/qualitative test. This can speed up your claim by 12-15 months.
[post by workcovervictim and manually transcribed on behalf of WCV]