New South Wales Worker Wins Appeal for New Evaluation of Workers Compensation Injury

Date: Jan 27, 2020

A New South Wales man successfully appealed for a new evaluation of an injury suffered in the workplace, which had been considered just under the bar for worker’s compensation evaluation of 15% disability. In dispute was one aspect of the injury, which may have been wrongfully excluded from the whole.

The incident

On 12 December 2015, the plaintiff, who was form the UK and had a working Visa for Australia, had been directed to work as a dogman and labourer assisting in the movement of steel mesh fencing by a type of mobile crane similar in operation to a forklift truck, work he had been qualified to perform. He was holding on to the load of steel when the crane driver dropped it. This action inflicted a crushing injury to Mr. Maguire’s left hand, including the traumatic amputation of a portion of his left thumb through the distal phalanx.

Subsequently, the defendant underwent reconstructive surgery, which procedure involved a revision of the traumatic amputation and the insertion of a Kirschner wire (“K-wire”) to stabilise the distal phalanx of his left thumb. The K-wire procedure was not entirely successful, and the defendant required three further operations, two revising the amputation and a third to remove the K-Wire. He then returned to his usual occupation as a carpenter, but with ongoing disability due to his injury.

The evaluation

The injury and subsequent disability was evaluated, and the following findings entered:

  • The thumb tip is floppy, making it difficult to grip with, in particular, difficult to hold nails while hammering them.
  • There is a loss of grip strength in the left hand.
  • The tip of the amputation stump is exquisitely tender if knocked.
  • There is intermittent aching in the thumb.
  • There is an unsightly appearance of the thumb prompting attempts at concealment.
  • The injury causes difficulty in removing things from a pocket with the left hand.

The disability

The disability was evaluated by the original medical professional consulted at 16%, with a 1% allowance for the scarring. However, the employer’s doctor only assessed a 12% disability. The dispute led to a third evaluation by another physician ordered by AMS, which put the assessment at only 15%, with a 1% allowance, and separated the scarring from the rest of the claim, leaving the disability at 14%, just under the 15% requirement for workers compensation.

The judgment

The Court found that the separation of the scarring from the rest of the assessment may have been an error, and found in favor of the plaintiff, who is pursuing the appeal. If your workers compensation case is in question, contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

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