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

PUBLISHED 11 Sep 2020

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.

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