Worker with shoulder injury awarded $450,000, highlighting compensation payouts in Australia

When you’re injured on the job, there are systems in place to make sure your expenses are taken care of, from your medical bills to lost income, as well as payouts for pain and suffering or decreased quality of life in serious cases. With that said, actually receiving workers’ compensation or workplace injury coverage can involve contentious negotiation between yourself and the insurer. In these cases, having an expert solicitor on your side can make all the difference.

One example of how the system works – or has to be made to work – comes from our dealings with a client who suffered a serious shoulder injury at work. Her efforts to be paid what she was owed ended in success, and revisiting the case demonstrates how payments for workers’ compensation, workplace injury and legal costs function.

A major shoulder injury compensated with a $450,000 payday

The story of our client’s injury starts in an unfortunately familiar way – a wet, slippery surface at her place of employment caused her to slip, fall and suffer a very serious injury to her left shoulder. The most recent data shared by the Australian Bureau of Statistics show that falling is the third-most common way to be hurt on the job. Indeed, 15% of work-related injuries in the 2017-2018 period covered by the data involved same-level falls.

Shoulder injuries: Serious and relatively common

According to Safe Work Australia, injuries to employees’ shoulders and necks caused 13,090 serious injury claims in its 2017-18 data, the most recent years for which figures are available. This is 12% of the total number of such incidents reported for the period.

The NSW State Insurance Regulatory Authority laid out some of the guidelines by which a shoulder accident is assessed in terms of permanent impairment. There are a variety of negative outcomes that can follow a shoulder injury such as a rotator cuff tear, ranging from loss of range of motion to persistent pain. Doctors are instructed to assess permanent impairment from shoulder damage in two ways – localised upper extremity impairment and a more general whole person impairment.

Lump-sum payments for permanent impairment

The damage to our client’s shoulder was severe, and she had to have more than one surgical procedure to repair the joint. The claims process began with an effort to receive workers’ compensation payments for pain and suffering, as well as the impairment stemming from the badly injured shoulder. This so-called lump-sum payment is designed to make up for permanent, lasting harm.

The lump-sum award is based on how permanently degraded the condition of a person’s body is. For claims made since legal changes went into place in June 2012, people injured in NSW workplaces must demonstrate that their permanent impairment totals 11% or greater if the injury is physical and 15% if it is primarily psychological. The assessment has to be carried out by an approved medical specialist trained in determining injury severity.

In our client’s case, this part of the case was wrapped up quickly and resulted in a pay-out of $45,000 from the workers’ compensation insurer. While in circumstances, this would be the end of the legal process, there was an additional wrinkle: The employer’s negligence in leaving the floor wet and slippery had been what led to the injury. Therefore, it was time to file a work injury damages claim.

Work injury damages claims for negligence

A type of common law damages, work injury damages are a special category set up by SIRA to ensure people receive payment after a company’s negligent actions caused them harm. These settlements replace all other types of payments such as medical expenses and weekly pay-outs from a more standard workers’ compensation scheme.

To be eligible for such a pay-out, you must have suffered permanent impairment of 15% or more, as assessed by an approved and qualified doctor who is an expert in the part of the body in question. Furthermore, the employer’s negligence must have led directly to that serious, permanent damage and all your lump-sum payment proceedings related to the incident must have already been paid. To be paid work injury damages, the insurer has to agree to the doctor’s assessment, or else the Workers Compensation Commission must step in.

An application for work injury damages should include all the details of how the injury occurred, in addition to the permanent impairment assessor’s report. To file such a claim, you should note the exact nature of the injury, how and when the damage occurred, the negligent acts by the employer that led to the situation, as well as issues in your past employment history that could have caused the injury. Furthermore, you should detail the economic losses you are claiming for, with documents to show that you have indeed lost income potential. 

SIRA notes that these matters sometimes go before the courts to determine whether to pay the claim. That is what happened in our client’s case. She went before a trial judge in October for a two-day legal proceeding that would determine how much the employer’s insurer was required to pay. Previous attempts to mediate the matter had broken down, leaving the matter up to the court.

The judge decided that the damages paid to our client should total $354,000. There was a catch, however: Since the assessment didn’t exceed the insurer’s previous settlement offer, our client was ordered to pay back the insurer’s legal fees. These fees began at the time of the mediation and stretched to the end of the court hearing, and totaled $35,000.

Appealing a judge’s assessment of damages

At this point, we provided instructions to our client indicating we were confident she could win a reversal on that repayment if she appealed the matter. She agreed – the decision that she would have to repay the legal fees of the insurer after going to court simply to receive what she was owed, was devastating to her. She was eager to fight back and win the full amount, and especially keen not to cover those legal fees. The client instructed us to appeal the trial judge’s decision.

The appeal process, finalised one year after the initial hearing in October 2012, was a success. In the end, the client was not only paid more than the initial judgment, $483,000, but the court also reversed the order to pay the insurer’s legal fees. While our client was happy to receive a larger award for her injuries than had originally been assessed, no longer having to pay the insurer’s costs made her even happier. She had been willing to fight, and with our assistance, she had won. The insurer itself was assessed a cost order totaling approximately $45,000, representing a complete turnaround from the initial judgment that our client was liable for the firm’s expenses.

Other scenarios involving serious injuries 

Of course, workplaces are not the only place injuries can occur, and having a trained lawyer to assist you with legal advice from the initial consultation through the final appeal is also relevant in these cases. A similar shoulder injury suffered in a motor vehicle accident may entitle you to compensation for lost wages, medical expenses until you can return to work or a large lump sum payment if you are found to have a permanent impairment.

Suffering the same types of personal injuries in different circumstances can mean a different engagement with the insurance system, as the party at fault will be different in each case. The general pattern is the same, however: To receive compensation, you will have to demonstrate the extent of what you have suffered and whether it amounts to a temporary inability to work or lasting pain and suffering. Reaching an agreement with the insurer may prove challenging and if it does, you’ll be glad to have a legal expert on your side.

With our no-win, no-fee guarantee and nearly two decades of experience fighting to get our clients the money they are due, the experts at Gerard Malouf & Partners Compensation Lawyers are valuable allies. From slips and falls at work to car accidents, public liability issues, medical negligence and more, we are able to provide the insights you need to challenge the system and win.

When you need to take on a corporate insurer to receive compensation for an injury you’ve sustained, call us at 1800 004 878 or submit your inquiry by email for a free, informative appointment.

Our client was employed as a contract driver, due to the nature and conditions of his employment, our client suffered a severe injury to his left hip. As a result of his work duties, our client ending up having surgery to his hip.

Our client immediately contacted Gerard Malouf and Partners as the workers compensation insurer had denied liability for the claim.

Our client was no longer receiving any medical treatment or weekly benefits.

In order to overturn liability, the team at Gerard Malouf and Partners had our client assessed by one of our independent medical doctors. We also took the liberty to ensure we obtained clinical notes and reports from our clients GP and treating specialist.

The matter was subsequently listed for a Conciliation and Arbitration hearing. Noting the overwhelming evidence, we had obtained on behalf of our client, the Arbitrator ultimately ruled in favour of our client. As a result, the insurer was forced to overturn their decision to deny liability for our clients claim. Our client was also awarded lump sum compensation as he was assessed by an Approved Medical Specialist to be 15% Whole Person Impairment.

Our client is now pursuing a Work Injury Damages claim (negligence claim) against his employer as a result of the successful outcome of his workers compensation claim.

If you live in a rural, regional or remote area, do not be discouraged. Gerard Malouf and Partners can help you recover a deserved amount of compensation for your work injury.

 

 

Our client was employed as a school teacher on the particular date of injury, our client was walking past chairs and tables in the playground in order to attend to her next class when she had a slip and fall as a result of the ground being uneven. Our client suffered a serious injury to her lower back and both her knees.

She lodged a worker’s compensation claim and remained off work before she returned to the workforce on light duties. Our client was under the care of a number of specialists for her injuries and was required to undergo various surgical procedures.

We successfully settled a permanent impairment claim for 40% Whole Person Impairment with the Workers Compensation Insurer. Because our client’s Whole Person Impairment was agreed at over 15% WPI, she becomes eligible to potentially bring an additional claim for Common Law Modified Damages, also known as Work Injury Damages which is a claim in negligence.

We then advised our client of a potential claim in negligence against her employer for their failure to provide a safe system of work which caused a serious injury resulting in an inability to work.

A claim for Work Injury Damages was then commenced against the employer. Our expert team here at Gerard Malouf & Partners offer a “no win, no fee” arrangement whereby our client does not have to pay any fee until there matter is successfully resolved.

We obtained expert evidence and prepared the claim in negligence against the employer. We subsequently participated in a compulsory Mediation. The matter was then able to be successfully resolved by our solicitor and experienced barrister negotiating with the Defendant at the Mediation. Our client ultimately received over $530,000 in compensation from the workers compensation insurer.

If you live in a rural, regional or remote area, do not be discouraged. Gerard Malouf and Partners can help you recover a deserved amount of compensation for your work injury.

Our client was employed as a carer/nurse on a full-time basis and unfortunately sustained two injuries during the course of her employment. The first injury was a psychological injury and the second injury was a physical injury.

In relation to the psychological injury, our client was bullied and harassed in the workplace by her colleagues for an extended period of time. As a result of same, our client unfortunately suffered severe psychological injuries.

As for our client’s physical injury, our client sustained an injury to her lower back due to the nature and conditions of her employment.

The fact that our client had sustained two workplace injuries, the team at Gerard Malouf and Partner were determined to ensure our client received the maximum justice she was entitled to.

We obtained the appropriate evidence in order to assess our clients psychological and physical injuries. This required us qualifying the most appropriate doctors and obtaining on behalf our client her clinical notes/records from all her treating doctors.

In the end, the insurer was not able to prevent paying lump sum compensation to our client for either of her injuries as we had overwhelming evidence to suggest that these injuries were completely work related.

Our client was assessed at 12% Whole Person Impairment for her physical injury and 19% Whole Person Impairment for her phycological injuries.

Our client was delighted with the result that she was able to receive lump compensation for two separate injuries with the same employer.

Our client is now pursuing a Work Injury Damages claim (negligence claim) against her employer as a result of the successful outcome of her workers compensation claim.

If you live in a rural, regional or remote area, do not be discouraged. Gerard Malouf and Partners can help you recover a deserved amount of compensation for your work injury.

Have you suffered a workplace injury? Or do you know someone who has?

Contact Gerard Malouf and Partners for a complementary free consultation to assess your legal rights and to provide you with free advice.

In April 2019, our client attended the hotel for the purpose of a leisure stay. Upon check-in he was told to ensure the door to the bathroom was closed while using the shower, so that the steam would not set off the fire alarm. That evening, upon stepping out of the shower, he slipped, hitting his left shoulder followed quickly by his right as he fell out of the shower cubicle. He then attended the Hospital and was found to have suffered a full thickness tear of the tendons in his right shoulder.

As a result of his injury, this man was unable to return to work as a bus driver for an extended period of time and now finds it difficult to enjoy social and recreational activities because of pain and restricted movement.

This gentleman contacted Gerard Malouf & Partners and was put into the care of one of our Accredited Specialists, Jayne O’Sullivan. Jayne and her team got to work by organising for the premises to be inspected by one of our highly regarded experts, who found that the floor surface failed slip resistance tests and the Hotel failed to conduct proper risk assessment prior to allowing visitors to stay in their rooms. Our expert orthopaedic surgeon was supportive of the case as well, stating that he was left with ongoing injuries and disabilities and that his normal life was now significantly impaired as a result of the fall.

Our client was also assessed by a psychiatrist due to the upheaval this event had on his day-to-day life. He had symptoms of a depressed mood as a result of this accident as he could no longer have the same enthusiasm for his previous pleasures in life such as golf and tennis.

This matter ultimately progressed to settlement and our client was successful in his claim, which was much deserved after the huge toll this ordeal took on him. Not only did this accident affect him financially, but it caused him a lot of emotional distress and affected his social life immensely. Jayne and her team were happy to be able to take some pressure off of him by way of monetary compensation and hope that this assists him with his ongoing medical expenses.

This matter involved a gentleman who became victim to medical negligence after he underwent coronary angioplasty and a stenting procedure.

This gentleman began to experience symptoms of left-sided chest pain, sweating and fluctuating blood pressure in late 2014. He was referred by his GP to a hospital in the Australian Capital Territory where he underwent a coronary angiogram in October 2014. During the course of the procedure, the angiogram catheter penetrated the vascular wall leading to a dissection of the right artery.

As a result of this, the gentleman required urgent open heart surgery and then suffered from ongoing periodic arrhythmia issues. The gentleman also required a defibrillator, a pacemaker and regular reviews with a cardiologist in Canberra.

Gerard Malouf & Partners was approached by the gentleman to investigate whether there was negligence on the part of the hospital and to seek compensation for his pain and suffering, and mental distress.

GMP sought evidence from a Sydney cardiologist who opined that the management of the patient was below the acceptable standard. This was because there was a failure to have the case reviewed by the heart team prior to proceeding to angioplasty and stenting. This which would have revealed heavy calcification in the arteries and may well have made the patient more suitable for coronary artery bypass surgery or simply medical therapy and avoided the catastrophic complications that did occur. The cardiologist also opined that a fractional flow reserve should have been performed before intervention as the stenosis was not severe meaning the angioplasty could have been avoided.

Proceedings were commenced in the Magistrates Court of the Australian Capital Territory.

Unfortunately, the gentleman passed away before a mediation could take place. Despite the tragic circumstances, GMP committed to proceeding with the claim and achieving justice for the deceased and his family.

We were able to receive settlement monies in the sum of $100,000 to go towards the deceased estate, for the family and loved ones.

At Gerard Malouf & Partners we will continue to fight a claim where we can prove negligence occurred; even if our client is deceased and unable to receive settlement monies. Family members of those harmed still deserve some justice for the wrongdoing of medical professionals. It is the least we can do to try and ease the pain in such a horrible time. Call us now on 1800 004 878 to speak to one of our experienced medical negligence lawyers.

During lunch time in June 2018, our client was walking along the public pavement in Sydney CBD, where the path was a declining slope and some steps that were installed parallel to the road. As our client was weaving through the crowd of pedestrians, he moved towards the building side of the pavement, when he tripped on the small step and sustained serious injuries.

The subject step was difficult for our client to see as the step and the surrounding footpath were constructed with the same pavers and the step began to gradually form perpendicular, as the footpath gradually sloped downwards. There were no visual warnings of the presence of the step, which highlighted the step’s existence to everyday pedestrians.

Our client came to us for advice a few weeks after the incident, when he had realised that the injuries he had sustained to his left ankle required surgery and that he would face a long recovery process.  In particular, prior to this incident, our client led an active and healthy lifestyle. This injury impacted upon our client’s ability to engage in sporting activities including marathons, squash and compete in ‘boot camp’ style events. Unfortunately, soon after the incident our client was let go by his previous employer and throughout the litigation process, our client had multiple changes in his employment, due to the injuries he had sustained.

Proceedings in this matter were commenced against the joint owners and occupiers of the commercial premises where the incident occurred, arguing that the owners were responsible for the construction and maintenance of the subject step.

The team at Gerard Malouf and Partners performed multiple site views to analyse the incident location, gather evidence and prepare for the anticipate defences and arguments that the opposing parties would raise. Following our initial investigations, we obtained an expert liability report in support of the matter which concluded that the subject step should have been highlighted in some contrasting material in order to bring the step to pedestrians’ attention.

Once the team had obtained its supporting expert liability evidence, they began collating the evidence in respect of the damages to be claimed in the matter. our client was assessed by an Orthopaedic Surgeon who was of the opinion that our client’s injury would continue to impact upon his life, in particular with repetitive movements, lifting heavy objects and navigating stairs and uneven slopes.

Our team continued to press the matter against all the parties and strongly argued our position to achieve an efficient and satisfactory settlement amount against both owners that was above $260,000. Our client was pleased with this sum of money as this will enable him to pursue his personal, social and business interests, and move on from this difficult time.

If you have been involved in a trip and fall incident along a footpath, contact the expert public liability team at Gerard Malouf and Partners today.

One night in October 2016, our client was riding his motor bike along a road in South-West Sydney when he collided with a large orange water-filled traffic barrier, was thrown from his bike and onto the ground sustaining serious injuries.

The road which our client had been riding along was subject to road works and road closures, for the Badgerys Creek upgrades, and the orange traffic barrier had been erected as part of the road closures. The area was not lit at the time of the accident and there were no light reflective materials or warning signs regarding the roadworks and barriers, therefore our client was unable to see the barrier, until immediately prior to his accident.

Our client came to us for advice around 1 month after the accident, as he was still suffering from the effects of the accident. After the initial investigations, it became clear that the orange barrier had been erected by the construction company and contractors who were responsible for the management of the road works. The team at Gerard Malouf and Partners fought hard for our client obtaining an expert liability report in support of the matter and performing inspections at night with the expert, which concluded that the failure to provide adequate lighting and signage contributed to the accident.

Proceedings were commenced in this matter in the District Court of New South Wales against the construction company. The claim was hard fought by the Defendants who filed defences denying liability for the accident and also filed a cross claim in the matter indicating that the company who provided the traffic barriers to the construction company for the road works were responsible for the accident.

pThe team at Gerard Malouf and Partners also obtained a number of medical reports in the matter to provide support for our clients claim for damages including a vocational assessment and occupational therapist report and reports from an Orthopaedic Surgeon, so that we could maximise our client’s claim.

Once our team had collated and served all the evidence, they were in a position to negotiate with the parties to achieve an optimal settlement against the construction company. Our client was pleased with this sum of money as this will enable him to have some time off work to undergo further surgery to remove the metal plates which were inserted after the accident.

If you have been involved in a single vehicle accident, contact the team at Gerard Malouf & Partners today and speak to a personal injury specialist.

In around June 2018, our 54-year-old client was visiting her friend at their rental premises. As our client was walking through the dining room, the floorboards gave way causing her body to fall into the hole and become stuck within the hole around the waist.

Our client came to us for advice about the incident as her friend had previously complained about the state of the floor to the real estate agent responsible for managing the property. The incident had also aggravated our client’s pre-existing injuries she had previously sustained in a previous fall that caused her to be in receipt of a Disability Support Pension.

The public liability team began investigations into the matter, requesting documents from the real estate agents and landlord about the system of inspection in place in regards to the subject premises. Our investigation uncovered that there was damage to the floorboards due to leaking water. Crucially there were no documents provided by the real estate agent demonstrating that any reasonable inspections were undertaken throughout the 6 years our client’s friend had resided in the premises.

In addition, the team carefully reviewed photographs of the premises which indicated that the premises was in a state of disrepair and was soon after the incident declared uninhabitable.

The Public Liability Team was then able to argue that as the managing agent of the property, the real estate agent, had a contractual obligation to undertake routine and reasonable inspections of the property to ensure that the rental premises was free from defects and safe to live in.

Our client had sustained minimal lower back and leg injuries, which were not permanent, and our client was able to mostly recover from her condition.

Due to the thorough investigations perform by our Team, we were able to negotiate and settle the claim without the need for expensive liability and medical expert reports.

The team successfully negotiated with the insurer without the need to commence proceedings in court. Our client was pleased with the result as this sum of money will enable her to obtain the treatment she requires, without the need to go to court.

If you have been involved in an incident in a rental property, contact the expert public liability team at Gerard Malouf and Partners today.

At the time of his accident, our client was completing his shopping at a grocery store in North Strathfield. At the checkout counter, he noticed a wine section adjacent and walked over to obtain some wine. On his way back to the counter, he did not notice a stack of boxes hidden behind a trolley and tripped. This caused to fall heavily to the ground, face first. Our client landed on his left side and sustained injuries to his lower back and left knee as a result.

Immediately following the fall, a worker and the store’s manager assisted our client. Fortunately, he returned to the store the next day to report the accident and an incident report was completed.

Our client reported pain in his lower back and left knee for some time until he decided to engage the services of the Public Liability team at Gerard Malouf & Partners. He had not seen a medical professional up until this point. Our expert solicitors knew that in incidents such as this one, it is important to attend upon doctors. In addition to advising him of the merits of his claim and his legal rights, they recommended attending a general practitioner as a matter of urgency and undergo some radiological investigations.

While our client attended to his health, the GMP team made contact with the grocery store to obtain all documents and CCTV footage that related to the incident.

After investigating the full extent of the claim and all avenues for the damages our client was entitled to, our solicitors engaged the Shopping Centre in settlement discussions. Unfortunately, all attempts at settlement prior were unsuccessful and the GMP team were required to commence court proceedings in the District Court of New South Wales.

Gerard Malouf & Partners continued to engage in discussions with the grocery store until we successfully reached a Judgment by Consent. The team secured a settlement figure of $60,000.00 for our client within months of him engaging our services.

Although our client did not have a claim for past or future economic loss, the Gerard Malouf & Partners team were able to still achieve a great result that will greatly assist our client with his future needs.

If you have been involved in an accident and sustained injuries, please do not hesitate the experienced Compensation lawyers at Gerard Malouf and Partners for a free consultation on  1800 004 878.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.