Stabilisation of injury (aka Maximum Medical Improvement, or MMI), is a simple yet extremely important concept in every workcover claim. It refers to the point in your medical treatment beyond which you are not expected to get any better (or worse) by 3%. This is not to say that your medical treatment is finished but it’s aimed to maintain your current level of health and functioning. As an injured worker only gets to apply for a serious injury once it is important that the claim is not made prematurely.
Even when you have been awarded a serious injury certificate in Victoria (or elsewhere) for both pain and suffering and economic (pecuniary/future earnings) loss for a common law claim, your lawyer may advise you to drop the economic loss part of your claim and to only pursue the pain and suffering claim. This brief article explores the potential reasoning for not pursuing the economic loss part and to stay on workcover (weekly payments) instead.
We refer back to our previous post “Workcover compensations cases from the courts “, legal case 10: G v Silaforts Painting Pty Ltd & Ors  VSCA 179 (8 August 2012) which merits full coverage. In this Victorian case, the Supreme Court of Victoria, Court of Appeal (the VCA) has ruled that injured workers bringing a common law damages claim under s 134AB of the Accident Compensation Act 1985 (the AC Act) are entitled to claim for the totality of their injuries and not solely for specific injuries deemed “serious” in their own right.
Further to yesterday’s article about the common law damages claim process, including the definition and inevitable difficulties in meeting “serious injury” test by means of a qualitative test in court (as opposed to being deemed seriously injured by means of the quantitative test involving a permanent impairment rating of 30% or more in Victoria & NSW), the following legal case highlights the difficulties in having your injury(ies) and their consequences considered “as being more than significant or marked and as being at least very considerable.”
In Halpin v Wilson Transformer Company Pty Ltd , the Court of Appeal overturned a decision not to grant leave to an injured worker to bring common law proceedings for pain and suffering.
Further to some questions posted regarding action for damages in respect of injuries in Victoria, we thought it worthwhile to resummarise the process and restrictions on the ability of an injured worker to recover common law damages in Victoria.
We’ve said it a million times, the most important thing is to be honest about your injury, condition, restriction(s), to be yourself at all times, to be aware that you will likely be under some form of surveillance at some stage during the life of your claim, and that you should never forget that you also need to give your lawyer(s) and barristers the very best opportunity to secure the best outcome for you!
“Madame Zena” just saw this article in yesterday’s The Age which she thought may be of interest to our readers.
The article centres around a former Victoria Police detective, who in order to commence an action for negligence against the State of Victoria, had to first satisfy the court (under the narrative tests) that his injuries meet the criteria of “serious”.
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.
Many [Victorian] seriously injured workers, who are eligible for a common law damages claim, ask us how long it will take to settle their [common law damages] workcover claim.
Where on earth does one start on this! In this disturbing, recent (Oct 2012) legal case, the judge claims the injured worker has exaggerated her pain condition. She has a chronic pain disorder, which is labelled by the judge as a “mental condition”! Exaggerating pain is what chronic pain conditions do! That finding from the judge was a total double standard. What on earth was her legal team doing? Poor woman was, and undoubtedly still is, going through hell.