Lawyer acted with inexcusable lack of diligence and competence

bad-personal-injury-lawyer

Staying on the topic of rogue lawyers who are making money on the misery and lack of legalese knowledge of injured workers, an ACT Supreme Court ruled that an injured worker, who eventually lodged a common law damages claim 10 months out of the strict time limit, that she knew nothing about time limits and that her (by then)  former lawyer had acted on her behalf with an ‘inexcusable lack of diligence and competence’.

As we posted recently, In a 2013 legal case, a well known law firm (Galbally & O Bryan) that advised an injured nurse against suing her employer for loss of earnings was found negligent in advising her not to settle her claim.

On 18 December 2013, Personal injury lawyer Sammy Bektas – the Principal from VCL– charged exorbitant fees to his vulnerable clients a tribunal ruled was an unethical breach of his duties. He was banned to practice for 4 years.

Around the same time, Perth lawyer Paul O’Haloran was  deemed unfit to practice by the full bench of Western Australia’s Supreme Court, after he was found to have repeatedly exploited vulnerable clients (injured workers) who had all suffered a personal injury!

And the list goes on…

Lawyer acted with inexcusable lack of diligence and competence – ACT Supreme Court

An injured worker (nurse assistant), who lodged a common law damages 10 months out of strict time limits, has been granted an extension of the limitation period afterthe ACT Supreme Court was satisfied that the injured nurse knew nothing about common law time limits and that her (by then) former lawyer acted on her behalf with an ‘inexcusable lack of diligence and competence’.

The injured worker’s former lawyer is a certain Ms Jane Morgan whose wherebaouts were a bit hard to track, but she appeared to be working for Morgans Lawyers at Haberfield in NSW.

Background of the workcover legal case

In December 2001, an assistant nurse was helping a coworker to transfer an elderly patient from a bed to a bed bath at an aged care facility in Canberra — operated by Baptist Community Services (BCS) NSW.

During the transfer of the patient, the side of the bed bath closest to the nurse assistant collapsed, causing the patient to fall towards her. Under the weight of the patient, she landed (hard) on the floor. A subsequent investigation into the incident found that faulty equipment was the cause of the accident.

Following her fall at work, the nurse assistant (the injured worker) suffered (lower) back pain and headaches, and was off work on workcover, until mid-January 2002 when she returned to work on light duties, and then on pre-injury duties.

In 2003, the injured nurse assistant eventually moved to another aged care facility (also operated by BCS NSW) even though she continued to suffer from ongoing  (lower) back pain.

About 5 years later (Feb 2008), the injured nurse assistant was lifting and putting (heavy) bags of dirty linen on a linen trolley at her workplace, and suffered a neck injury. She initially thought her symptoms may be caused by her underlying rheumatoid arthritis, which was diagnosed in 2004.

As a consequence of her severe neck pain, the nurse assistant was unable to continue work. She sought specialist opinions and major neck (cervical) surgery was recommended.

When the injured nurse assistant contacted her workcover insurer— QBE Workers Compensation (NSW)— to seek authorisation and payment for the recommended neck surgery, the request (for surgery) was rejected by the insurer.

QBE based its decision on an report from an IME (of course) which it had concluded that the injured nurse assistant’s employment did not substantially contribute to her current neck symptoms, but that her neck injury was caused by “constitutional degenerative changes in her cervical spine”.

Associate Professor Oakeshott had the benefit of the CT scan report of 18 February 2008. His view was that the reported changes were of long standing and were constitutional in origin. He could not correlate them with any of her symptoms. They did not represent an injury in February 2008. They were changes which were capable of existing without producing symptoms…..He thought that the plaintiff exhibited some abnormal pain behaviour, and, that she embellished her symptoms to an extent. He concluded that she did not have a significant work-related injury and that the symptoms of which she complained were substantially related to factors other than any recent physical injury at work. She was in his opinion fit for full-time work though she should avoid heavy lifting and pushing or pulling heavy objects. These limitations were in his opinion unrelated to any work injury a month earlier.

Associate Professor Oakeshott agreed that there was evidence of a discogenic cause for the plaintiff’s symptoms, but said that here was no medical support for a claim that the nature and conditions of the plaintiff’s work had caused the changes observed in her cervical spine. It was his opinion that her employment had not been a substantial contributing factor to her neck symptoms. They were related to constitutional degenerative changes in the cervical spine and not to a work-related cervical spine injury.

Associate Professor Oakeshott thought that Dr Pik’s recommendation for major cervical spine surgery was reasonable if her symptoms were not improving with conservative treatment. He noted that she had told him on 13 March that they were improving. He suggested a further period of three months of conservative treatment before making a decision to embark on major surgery.

The plaintiff says that after Dr Pik recommended surgery, she decided that she should proceed with it. She initially assumed that the workers’ compensation insurer would authorise and pay for the surgery. She was subsequently told that a decision had been made not to do so, presumably based on Associate Professor Oakeshott’s opinion. The plaintiff was very upset about the rejection of her request for payment for surgery. She was unable to work and very limited in what she could do. The pain, she said, was severe.

During June 2008 the plaintiff was admitted to Queanbeyan Hospital for management of the pain in her lower back, left shoulder and neck. She says that her left arm was becoming weaker. A general practitioner referred her to Dr Ralph Mobbs, a Sydney neurosurgeon. Dr Mobbs saw the plaintiff in August 2008. He took the view that she had a moderate to severe left C7 radiculopathy. Dr Mobbs was aware that Dr Pik had recommended surgery but that this was opposed by ‘an insurance doctor’. Dr Mobbs thought that the plaintiff should undergo decompression surgery of the left C7 nerve via a C6-7 discectomy. Because the workers’ compensation insurer would not pay for surgery, Dr Mobbs arranged for the plaintiff to go on to a public hospital waiting list. He was able to get her in for the operation in November 2008, when he carried out anterior cervical decompression fusion at C6-7. His observations in the course of the surgery confirmed the MRI scan report. A disc-osteophyte complex was impinging at least moderately on the left C7 nerve. This was consistent with there having been a traumatic incident, potentially with an annular tear and disc sequestration which had calcified over time. The degree of calcification meant that it was unlikely to have been caused by a recent event, and more likely to have been caused six to twelve months before the MRI scan, although this was ‘extremely variable’. What he found was unlikely to have been due to age alone. It was likely that the event he had been told about in 2001 was a contributing factor to a C6-7 post-traumatic degenerative disc-osteophyte complex, particularly in light of the fact that she had seen a general practitioner in April 2002 with features consistent with pain emanating from a source in the cervical spine.

Injured worker seeks legal advice

The injured nurse assistant basically sought legal advice when her surgery was rejected by QBE.

It was not until March 2008 that she first did something about getting legal advice. The trigger was the refusal of the workers’ compensation insurance company to meet the cost of her surgery. Her sister knew a solicitor in Sydney called Jane Morgan, and arranged for Ms Morgan to get in touch with her by telephone. Ms Morgan advised her that she should pursue a claim for workers’ compensation arising out of the neck injury at work in February 2008.

She hired a lawyer —Jane Morgan— who advised her to concentrate on claiming common law damages in respect of her December 2001 and February 2008 injuries. Subsequently, legal action was commenced on the injured worker’s behalf in October 2008.

After a conference with Mr Bartley (a barrister), Ms (Jane) Morgan told the plaintiff (the injure worker) that she should forget about making a claim for workers’ compensation and should concentrate on a claim for damages at common law. The plaintiff (injured worker) was concerned at the concept of suing the defendant, her then employer, because she enjoyed her work and did not want to put it in jeopardy. She left it up to Ms (Jane) Morgan to do whatever she thought best.

In November 2008, and after waiting months on a public hospital waiting list, the injured worker finally underwent her much needed surgery (denied by QBE).

As mentioned above, the neurosurgeon who undertook the procedure found that her injury was unlikely to have been due to age alone, and that it was likely that the December 2001 event was a contributing factor.

In Feb 2009, 3 months after the surgery, QBE (insurer) apparently advised the injured worker’s lawyer that her claim was now statute-barred by the Limitation Act 1985. Meaning that the limitation period for claiming common law damages had expired in December 2007, or six years after the initial injury.

What’s perhaps even more sickening is that QBE continued to maintain that the injured worker’s incapacity to work was not “causally linked to her employment— WTF!

Injured worker seeks extension after delay in claiming damages

It took another whopping 9 months (Nov 2009) for the injured worker to learn from her incompetent lawyer —Ms Jane Morgan—that she had lodged her common law damages claim out of time and that she would need to urgently apply for an extension!!

Also, “coincidentally” during this critical time, both the bewildered injured worker and the (evil) workcover insurer (QBE), had tremendous difficulty in making and/or maintaining contact with the injured worker’s lawyer (Ms Jane Morgan), who, by the way, had assured and promised to take care of the application for extension for the damaged claim.

Unbelievably, the application for the vital extension for the common law damages claim had still not been lodged by Ms Jane Morgan in June 2011, more than a year and a half later!

As far as we understand te legalese of the case, the injured worker’s lawyer eventually advised her to seek alternative legal representation (duh!). Thankfully that’s what the injured nurse assistant did (she should have done it ages ago!) and in July 2011, her new legal representative (Maurice Blackburn) lodged an application for the extension of the limitation period for the damages claim (common law).

Needless to say that this matter had to proceed all the way to the ACT Supreme Court, which is the only Court allowed— by law— to order a limitation period be extended provided the presiding Judge/Master decides that it is ‘just and reasonable to do so’.

The injured worker had no understanding of the concept of a claim for damages and the blame “lies largely” with the (former) lawyer – Ms Jane Morgan: Supreme Court

At the ensuing Supreme Court (ACT) Hearing, Master (David Harper) recognised that the injured nurse assistant had in fact not taken any steps to consult with a lawyer or claim (common law) damages before the expiration of the (strict 6 year) limitation period. He also accepted that legal action was finally started almost 10 months out of the strict time limit, and that the ensuing enormous delay in making an application for the extension (for common law claim) was ‘very much greater’ in that it was lodged almost 10 years after the injury, or some 3 and ½ years after the expiration of the strict 6 year limitation period.

However, the Supreme Court was also satisfied that the injured nurse assistant had no understanding of the concept of a claim for damages (or the difference between such a claim and a claim for workcover) before seeking legal advice (which she did for the first time in March 2008.)

The Supreme Court’s  Master Harper stated that the blame over the (huge) delay in applying for an extension (for the common law damages claim) ‘appears to lie largely and perhaps entirely’ with the injured nurse assistant’s former solicitor (Ms Jane Morgan), whom the nurse assistant  had ‘relied entirely on … to look after her interests’.

Master Harper went on to state:

‘The principal solicitor for the plaintiff behaved with an inexcusable lack of diligence and competence following delivery of the defence in February 2009 until she accepted the inevitable and advised the plaintiff to seek other legal representation in June 2011′

‘After acting reasonably promptly to commence proceedings when she was first instructed, the solicitor (Ms Jane Morgan) seems to have done almost nothing since, and, if the plaintiff (the injured worker) is to be accepted, to have actively misinformed the plaintiff as to where she stood and what was happening.

My provisional view, based on the evidence before me, is that the solicitor (Ms Jane Morgan) has placed the plaintiff (injured worker) in a position where she was at risk of losing such rights as she retained by reason of breaches of the Court Procedures Rules and of orders of the court of which the plaintiff personally was entirely unaware.’

‘In all of the circumstances if the plaintiff had been competently represented and had made a prompt application for extension during the latter half of 2008, I am satisfied that the balance of the interests of the parties would have weighed strongly in favour of granting an extension.’

The Supreme Court was also of the opinion that QBE (the workcover insurer) would not be disadvantaged by allowing an extension of the limitation period for common law, and that a fair trial was still possible.

Decision

The Supreme Court granted the extension so that the injured worker’s claim.

Harper also stated that “the issue of the insurer’s liability in respect of the nurse’s injuries was not an issue for determination in the current proceedings”. However, he did express a view that the insurer (QBE) was likely to be found liable for the 2001 injury, and that the major issue for determination at trial would be, basically,  whether the injured worker had suffered a new unrelated injury to her cervical spine in February 2008.

You can read the full text of the legal case here:  Shoobert v Baptist Community Services NSW & ACT Limited [2011] ACTSC 152 (9 September 2011)

Time limits for commencing court actions for negligence are subject to very complicated rules and therefore you should obtain advice about your particular situation immediately.

Every state has strict time limits to lodge a common law damages claim.

Our next article will  cover “How to make a complaint against your Lawyer”.

 

[Post dictated by Workcovervictim and transcribed on her behalf]

 

 



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