Pre-existing condition, aggravation of injury – a NSW injured worker shares story


A couple of weeks ago we were contacted by a NSW injured worker, who shared his long and rather complex workcover story.  The injured worker who will be facing a Hearing in a few months’ time would like to see if other NSW injured workers are having the same issues or troubles,  and says “it would be fantastic to hear any comments that may help me through these very cloudy uncertain days.”

Pre-existing condition, aggravation of injury – a NSW injured worker shares story

The injured worker’s story

Hi all,

I am [in my mid thirties] now but [about 12-13 years ago] I originally injured myself in a work accident where I ended up sustaining an injury to my spine where I had bulging discs, extreme lower back pain, numbness to my right shoulder and tingling fingers and severe sciatica numbness and pins and needles down my right leg.

I made the mistake of quitting work.

After the original X-ray I was informed that I had quite bad scoliosis. Which is a S shaped spine. (which I never knew I had or had any issues with back pain or anything in the past I was an extremely active sportsman playing soccer football cricket and even representing the far north coast in indoor cricket.)

After 7 months of waiting after the injury and MRI’s X-ray and seeing 3 surgeons, I was given a new treatment that was going to be the best thing since sliced bread at the time (12-13 years ago). It was called a cryo papain injection; it was introduced to possibly replace a spinal fusion.

It turns out that after doing this operation on less than approximately 1000 people it was banned in Australia and the US.

It turned out that out of the 1000 people in Australia that it was performed on, 200 found that it made improvement 600 people need future treatments of the injection or had to be given spinal fusions, 150 people were left in extreme pain and had no relief and remained in a lot of pain or left in a worse state and the other 50 people had allergic reactions and even 10 or 15 of those people died. (Approximate figures only).

I was one of the people that ended up in the position of being in a worst condition that what I was.
[Three years after my injury] after 2 years of extreme pain and being in a zombie state from pain killers and meds, my doctor asked if I considered claiming workers comp because I am in a position that I may never work full time or at all ever again.

I was (in my very early twenties) at the time of the injury and was really unaware of workers comp only thinking it was for people who lost legs died or crushed or were put in wheelchairs.

So in [3 years after my injury/accident] I applied for lump sum payment for permanent impairment. After seeing 5 different specialist and going back and forth with offers I was found that I had 40% permanent impairment of my spine 25% permanent effective use of right leg 10% of effective use of right arm and with a 10% reduction of payout due to pre-existing injury ( the scoliosis).

I eventually (3 years after my application for a lumpsum payment) accepted, after the insurance company doing everything to wear me down and give in.

I was given the final offer from the insurance company to take an offer of [around $30,000] with option for future claim or take them to court and may end up with nothing.

My [child] was born less then 12 months earlier and not being employed and having bills everywhere and about to lose my car and everything I saw no other option but to take it after signing off on it. I was advised by my solicitor at the time I made the right decision.

[Around] 2007-2008 I became a single father. I had no choice but to force myself to take part time work in a super market as a night filler. Being in extreme pain after every 4-6 hour shift 3 times a week I had no choice but to medicate and deal with the pain to the extent of finishing a shift and having to lay down due to the pain my spine would lock up and I wouldn’t be able to move for 4-6 hours.

But hating being on government payments and needing to do what I had to for my [child] so he could have everything he needed ( those good parents know you will do anything so your children will have what they need even drive yourself into the ground to do it).

After about 4 years of doing this (around 2011) I re-injured my spine moving some shopping trolleys.
I was off on weekly work cover payments for 6 months as soon as the day 6 months come around my payments were stopped …

and I was called into work for a meeting to tell me my payments have stopped and because I had stirred up an old injury they weren’t taking liability anymore and because I can no longer preform my pre-injury duties and they don’t have any suitable duties for me that met with my clearance medical certificate I was having my permanent part time contract terminated and also my employment.

So after explaining my story to a compensation solicitor supplied by my work union he advised me there’s not much we can do about being terminated but however with your first claim for lump sum your old solicitor should have also claimed for weekly loss of wages. Which I was never informed I could do the first time around.

So he put in a claim for loss of weekly wages and loss of future earnings as well as another lump sum payment. So [around 2012] after seeing 3 specialist the insurance company offered around $12,000 lump sum payout on the condition I drop the claim for loss and weekly payments.

My solicitor said its up to me if I take it, however with just the lump sum the offer should be around $25000 alone. So I decided not to take it and we went to the arbitrator were it dragged on and the insurance company wouldn’t offer any ground and continued to drag proceedings by requesting information and reports they claimed they never had which they did.

So I got to the point where we were at the stage of the face to face final arbitrator hearing and was told by my solicitor that this is it after [that day] it will be over one way or another. It was a great feeling.

But towards the end of the hearing my solicitor tells me the insurance company have now said they are going to claim section 15&16 of the workers comp act which is aggravation to a pre-existing condition (because of the scoliosis). Which was never been brought up prior to this at all in the arbitrator phone conferences.

But due to what the arbitrator called fair process he would have to consider this.

So for our claim to continue we had to hold proceedings and bring in my last employer the super market because the act says that pre-existing aggravation is the last employers problem.

So we have brought in the last employer and had our arbitrator phone hearing with all parties; my specialist report says the super market injury was a aggravation to the first injury from (about 12 -13 years ago). The supermarket specialist says that the supermarket injury was a aggravation to the injury from the first injury and the scoliosis has nothing to do with it.

So I am now waiting till the hearing in [later this year/early next year]; the arbitrator even advised all parties in the phone hearing that I had been put through enough delays and stalling tactics and the hearing will conclude in a decision.

It’s going to be hard for me to get the insurance company to find in my favour….

because they will have to pay me weekly wages from [the first injury 12-13 years ago) till now minus of course any earnings or Centrelink disability pension payments.

I was a store manager at the time of the injury [12-13 years ago/time of 1st injury] earning [around] $800 a week, so with inflation that’s about $1800 a week today.

As well as with the new WIRO hearing decision just making the ruling that because I am assessed at being 40% permanently impaired under the disability tables [of  year 2002] I am also entitled to future weekly payments without review because I don’t need the 30% WPI rating because I am more than 30% permanently impaired under the old table.

If I understand things correctly. Please comment and correct me if I am incorrect. I would love to hear any helpful comments or advise that can prepare me for the hearing.

The injured worker who will be facing a Hearing in a few months’ time would like to see if other NSW injured workers are having the same issues or troubles,  and says “it would be fantastic to hear any comments that may help me through these very cloudy uncertain days.”

A few pointers from aworkcovervictimsdiary

If you suffer from a pre-existing condition / injury and your pre-existing medical condition has flared up as a result of your duties at work, you may be entitled to workers’ compensation benefits, however the catch in the legislation (all states) is that work must have been a “significant contributing factor” causing the “flare up”. What’s perhaps even worse is that many workcover insurance companies and their so called “independent” doctors will go to great lengths to ensure that there is no “significant contributing factor” at work that caused the exacerbation or aggravation, but that the injured worker suffers solely from “old”, “pre-existing” or “degenerative” injuries, and deny compensation! We posted an article titled “Work injury deemed pre-existing – a shameful story ” which may be of interest to you, and people facing similar issues.

f it can be proven that the underlying condition was substantially aggravated by a work place activity or incident the injured worker should receive workers’ compensation benefits. Even if the arthritis pre-existed the accident and predisposed the worker to a herniated disc or torn ligament, if it can be proven that the work injury aggravated or exacerbated the underlying arthritis and is a substantial contributing cause to the condition and disability it should still – theroretically speaking- be considered compensable.

In reality, however, so called “independent doctors”, insurance companies, case managers and even some judges like to see some sort of change anatomically such as a herniated disc, or torn ligament, etc…and that is where the problem starts – because the injured worker needs to prove that the aggravation/exacerbation (i.e. flare up of arthritis, tendonitis, herniated disc, torn ligament etc) was caused by the worker’s work.

“Independent doctors”, insurance defense etc will of course do anything possible to ‘prove’ that the aggravation/exacerbation (i.e. herniated disc, torn ligament, tendonitis, whatever) came or could have come from the underlying, natural, progression of the arthritis (or in your case, the scoliosis)

As we wrote in our article titled “The ongoing abuse of Independent Medical Examinations“, The workcover insurer makes the final decision as to the liability of your claim ! Not even the IME nor your treating top specialists in the field of your injury.

You may also be interested to read our article entitled”When work is not “a Significant Contributing Factor” to causing the work injury: a painful story ” even though assuming that the worker suffers from “old age” (degenerative) or a pre-existing condition/injury, workers’ compensation benefits may be available to employees who suffer either exacerbation or aggravation as a result of a work place injury which  substantially contribute to the cause of their condition and/or disability.


6 Responses to “Pre-existing condition, aggravation of injury – a NSW injured worker shares story”

  1. I had my meeting with the solicitor and he assures me we are in good standing because it was only a temporary exasa to the original injury and all my medical evidence says its a that even the insurance companies doctor says the same thing. And with the wording of the clause for future payments there might be a possibility for future payments as well.

  2. Thank you all so much for your helpful advise what makes it so hard is I don’t at all understand how it all works from what I understand is that we are targeting my employer from 2000 where my original injury happen. Not the last employer. I have an appointment to see my solicitor Monday so I will keep you advised on my direction and outcome Iam sorry to sound so dumb on where I stand my solicitor has explained it but I only have a year 10 education and it seems that everything he explains just goes straight over my head even after asking my solicitor to re explain it for me. Thanks again.

    • Can you take a support person with you to your solicitors, sometimes they are able to catch whats being said and re explain it to you later on, find it helps having a support person with me, as pretty much it all goes over my head too.

  3. So if they offer a settlement on the day of the hearing and you deny it and the court awards costs close to that you pay the defence bill ??

  4. To the injured worker – I am a little worried that the defense (insurer) may deduct your 1st injury (as you received a lumpsum – case closed due to time limits?) and then try everything possible to blame your second injury on your pre-existing scoliosis. This would then possibly mean that you may not have reached 30% total permanent impairment , as they will deduct the 1st injury and your pre-existing condition, as such leaving you with the difference in WPI % solely for the aggravation (which may be 5-15%), and base their settlement on that part only.

    I am worried they ceased weekly payments, which basically means that they must believe you have some sort of work capacity now or in the near future. Why else would they cease weekly payments?
    At A Loss is also right, it’s the one or the other and you would need to be able to prove negligence on the part of the employer to be successful at common law (economic loss).

    Best advice: carefully listen to your lawyer, who should have ample experience in what is reasonable and what not. The other loophole is that if you refuse a settlement offer and the offer does not come within 10% of what a court would award you (so 90%) you would also become liable to pay the legal fees of the defense, potentially leaving you with nothing.

    Very tricky situation and I hope it will go well and in your favour, but brace yourself for ludicrous arguments and offer(s)

  5. Dear injured worker.

    if you are going to claim for past & future lost earnings then you will not be able to receive the statutory payments, that is how I understand it. Its one or the other.
    what you need to calculate is what the insurance offers you and what the Statutory Rate is worth to you from now until retirement age.

    example insurer offers you a total of $300,000
    Stat rate is $760 per week
    if you have 25 years before retirement age
    52weks X 750 stat rate X 25 Years = $975,000

    so the 300,000 is 675,000 short of what you will be paid for having a serious injury.

    However there is no guarantee after all look what O’Farrell done to all those people who thought they would be paid and looked after till retirement.