At Gerard Malouf& Partners we had taken instructions from a female cleaner who had sustained serious injuries whilst performing suitable duties. When instructing our office, this lady had already completed her lump sum claim for her impairment and as she satisfied the threshold of 15% whole person impairment (WPI) in order to pursue a work injury damages claim (common law negligence claim), we then commenced proceedings for damages on her behalf.
It is not unusual for injured workers to suffer from consequential injuries. Consequential injuries occur when an individual sustains an injury to a different body region as a result of the original injury. For example, an individual with a serious right knee injury may lean on the left side extensively in order to protect the injured right knee. As a consequence to this, the individual then suffers injury to the left knee.
There are many types of consequential injuries and these are common in personal injury and workers compensation claims.
The scenario for this particular cleaner however was slightly different. The injury which attracted the impairment at and above 15% WPI was not due to a consequential injury. It resulted from a further injury sustained while she was performing suitable duties. The original injury to her lumbar spine had restricted her capacity to work. Nevertheless, she was still able to continue work at some capacity with the same employer. Unfortunately, whilst performing suitable duties our client continued to fulfil her normal role and this was despite her work restrictions. As a result of this, further injury was sustained to her lumbar spine, increasing the level of her injury.
When she was eventually reassessed for an impairment, the assessment took into consideration the global impairment as a result of her work, as if it was one injury only. The impairment rating was considerably high and beyond 20% WPI.
At GMP Lawyers we accepted instructions acknowledging that she had satisfied the necessary threshold of 15% WPI in order to pursue a work injury damages claim. The circumstances surrounding the injury was also a great indicator that the employer was negligent. The injury sustained by this cleaner was an aggravation of the original injury and it is an injury that could have been avoided by proper care from the employer. When our client had been performing suitable duties, the duties she was provided was not in accordance with her restrictions and she continued to basically do what she was normally doing.
The heavy and repetitive work as a cleaner impacted on her original lumbar spine injury. Despite the original injury she was able to continue to perform some duties. The aggravation that was caused however, lead to total incapacity and the need for surgery. Had the employer been careful in the provision of suitable duties, the further aggravation would not have had occurred.
Although the employer’s legal representative denied liability, they were still eager to offer a substantial sum of money in damages (compensation) of just under $400,000. Considering our client’s age and limited earnings at the time of the injury, the offer was a significant one. Without hesitation our client had instructed for the matter to resolve accordingly.
In achieving a resolution at the high end, we had to attain the appropriate medical evidence to show ongoing and continuous incapacity. We also had to ensure there was factual evidence to support the claim on negligence. At Gerard Malouf & Partners, we understand exactly what is required by way of evidence in order to ensure that we are in a good position when negotiating a resolution of a claim.
For assistance from Gerard Malouf & Partners relating to a work injury or injury occurring other than work, you may contact us by phone on 1800 004 878 or complete our email enquiry form that you will find on our website.
