Category: Law Articles

Court of Appeal Decision on Worker’s Right to Lump Sum Payment

Workers Compensation Update
Your rights for Compensation for Permanent Impairment
Case note: Gaudappel v Adco Constructions Pty Ltd (2013) NSW CA 94

Traditionally, the New South Wales scheme of Workers Compensation has provided an injured worker for ongoing entitlements to compensation provided they could establish their employment was a substantial contributing factor for their need.

The three main entitlements were:

  1. Payment of your work injury related medical expenses,
  2. Weekly wage compensation for incapacity to earn because of your work related condition, and
  3. A small sum for any Permanent impairment caused by your work related injury.

The new Workers Compensation Scheme has seriously eroded these rights, including an injured worker’s right to benefits for permanent impairment.

A right to benefits for permanent impairment is a right not often know by workers and rarely disclosed by the insurer/scheme agent.

Under the new scheme, a worker has to prove that their work related injury results in a 11% or greater Whole Person Impairment rating.

It may not sound much, but this is a very high threshold to overcome.

However, there may be some relief for those who made a claim for workers compensation BEFORE 19 June 2012.

The New South Wales Court of Appeal has upheld an Appeal by an injured worker claiming benefits for a Permanent Impairment suffered as a result of his employment.

The claim was for less than 11% Whole Person Impairment.

He argued that as he had made a claim for compensation before 19 June 2012 then he did not need to meet the 11% threshold.

In essence, this decision provides that if you have suffered an injury and made a claim for Worker’s Compensation in any form before 19 June 2012 then you are entitled to claim benefits for whatever permanent impairment you have suffered.

If, your injury happened after have not made a claim for Worker’s Compensation benefits before 19 June 2012 than, you must reach a threshold of 11 % Whole Person Impairment before you are entitled to any compensation for Permanent Impairment.

Special leave to appeal this decision to the Highest Court in Australia has been made by the employer. It remains to be seen what their decision will be.

On 17 April 2010 the injured worker suffered an injury at work when a bundle of steel fell from a forklift causing him an injury on his left foot and left ankle.

Two days later the injured worker made a Workers Compensation Claim.

As is usually the case the original Workers Compensation Claim does not specifically make a claim for any permanent impairment.

The law requires that a worker “reach maximum medical improvement” before he can be assessed and make a claim for permanent impairment benefits.

On 19 June 2012, new provisions of the Workers Compensation Scheme came into force for all “claims for compensation” made on or after 19 June 2012.

The injured worker made a claim for permanent impairment benefits after this date.

In essence, the issue was whether the original Workers Compensation Claim was enough to see his claim fall under the Pre-Workers Compensation Amendments.
Decision of the President of the Worker’s Compensation Commission

President Keating of the Worker’s Compensation Commission dismissed the workers claim stating that “claim for compensation” meant that a claim specifically for permanent impairment benefits had to be made before 19 June 2012.

As the claim for permanent impairment was made by the worker after this date and under the 11 5 Whole Person Impairment Threshold he could recover no compensation for permanent impairment. The Worker Appealed to the New South Wales Court of Appeal.
The New South Wales Court of Appeal Decision

The New South Wales Court of Appeal allowed the Appeal.

The New South Wales Court of Appeal found that if any claim for Compensation is made before 19 June 2012 than the old provisions will apply to that claim (i.e there is no threshold for obtaining Whole Person Impairment benefits) and thus the worker can claim.

The Court noted that this was the case “whether the claim specifically sought compensation” for permanent impairment benefits.
Is this the final word?

The employers Solicitors are considering whether they should appeal to the highest Court in Australia that is the High Court of Australia.

The employer has until 27 May 2013 to lodge this Appeal.

If any Appeal is lodge, the High Court of Australia must grant special leave to hear the case of the employer.

If special leave is granted, than the High Court will review the case and provide a judgement which may overturn or confirm the New South Wales Court of Appeal.

It is yet to be seen whether the employer will appeal to the High Court of Australia.
The position of WorkCover

WIRO, a sub branch of WorkCover has issued the attached fact sheet which provides what an injured worker’s rights are if they have made a claim for compensation before 19 June 2012 with respect to permanent impairment.

This document states that WorkCover is of the view that an injured worker can make a claim for permanent impairment benefits.

If you reach the threshold of 11 % Whole Person Impairment than you are entitled to further compensation for pain and suffering.

If after making this claim your condition further deteriorates, an injured worker will be able to make a further claim for permanent benefits provided that the deterioration has caused an increase in assessment of permanent impairment.

If you have made a claim for compensation before 19 June 2012 and have any ongoing impairment we strongly suggest that you seek legal advice as to whether you have any entitlements to permanent impairment benefits.

It is still to be seen whether the New South Wales Government will seek to change the law so that the New South Wales Court of Appeal Decision is in fact changed.

If you do wish to proceed with a claim for permanent impairment benefits we ask that you kindly contact our office and arrange an appointment in this regard.

About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Worker Receives Compensation Prior to Stabilisation of All Injuries

Scott Hall-Johnston, a partner at Beilby Poulden Costello, recently represented a woman who suffered an injury in the course of her work.

The Facts:

The plaintiff, in the course of her work, fell and suffered injury to both knees and her spine. A workers compensations claim was lodged and she was deemed to have permanent injury to her right knee and spine. The injury to her left knee, although considerable, had not stabilised and could not be assessed. The Workers Compensation Commission determined that because the injury to the left knee had not stabilised, it would be inappropriate to pay compensation until such time as it did.

The Judgment:

The NSW Court of Appeal found that there is no reason why a worker cannot be paid compensation in respect of injuries that have stabilised, and at a later time, be paid compensation for injuries which have not yet stabilised.

Effect of the Decision:

The decision has ensured that workers who suffer multiple injuries in the course of their work are entitled to claim compensation prior to the stabilisation of all injuries. This decision guarantees that workers don’t suffer an unfair delay in gaining compensation as a result of injuries suffered at work.

If you would like to discuss your rights, please contact one of the solicitors at Beilby Poulden Costello on 8280 6900.
Case Source: Worker Receives Compensation Prior to Stabilisation of All Injuries

About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Dentist Found Guilty of Injury Still Registered

A DENTIST who carried out nearly $75,000 worth of dental work on a patient – despite knowing it was unnecessary and would be ineffective – is still able to practice despite the NSW Supreme Court yesterday ordering him to pay more than $1.7 million in damages for intentional injury.

Mark Phung, whose practice is in the south-west suburb of Beverly Hills, saw patient Todd Dean 53 times in one year after Mr Dean was struck on the chin by a piece of wood in a work-place accident in 2001.

Though the court found Mr Dean suffered only “limited damage to a small number of otherwise healthy teeth” after his accident, Phung fitted all his teeth with metal crowns, performed numerous root canals and inserted bridging.

But despite the finding, Phung is still listed as “registered” by the Australian Health Practitioner Regulation Agency because the issue of his registration needs to be dealt with separately before the Dental Tribunal.

The court described Mr Dean’s treatment as “entirely unnecessary and ineffective to address the plaintiff’s problems” and said “the dentist must have known that to be so when he embarked on the course of treatment”.

In a report tabled as evidence, consultant dentist Andrew Howe said: “All of Dr Phung’s treatment for Mr Dean would be described as inexcusably bad and completely outside the bounds of what any reputable dental practitioner might perform.”

After the court last year ordered Phung to pay almost $1.4 million in damages, he continued to practice. Yesterday’s ruling upped those damages to nearly $1.8 million to account for non-economic costs to Mr Dean after Phung was found to have fraudulently represented procedures to him for financial gain and knowingly caused harm.

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About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Crime Claims Left Mired in Bureaucracy

Victims of crime have been frustrated by a compensation regime that is bureaucratic, costly and inefficient, resulting in a backlog of more than 20,000 claims – including one for a crime committed in the 1930s.

The bottleneck in the Victims Compensation Tribunal has forced the suspension of new claims. There is speculation in legal circles the state government will wind it up.

Resolution of a claim now takes an average of 30 months, and can stretch to four years or more.

More than 23,500 claims are awaiting a decision and a further 2100 are listed for hearing.

One lawyer who deals with the tribunal – where cases initially knocked back by claims assessors are heard – said he ”wouldn’t be surprised” if it were wound up.

People can wait years before being knocked back for compensation.

One applicant, who lost three teeth and sustained serious dental injuries in an assault, sought compensation for costs, including $20,000 in dental treatment. After a wait of more than two years, the case was dismissed because it did not meet the minimum compensation threshold determined by the act.

In another case that went to the District Court, a girl who was abused by her mother and stepfather before being placed in foster care in 2005 at the age of three, had a series of claims lodged on her behalf by a guardian.

Her claim was lodged in 2007. An assessor awarded ”S” compensation for some claims, and dismissed others, finding they were part of a single act of violence.

The decision was appealed to the tribunal in 2008, and the District Court in July 2009. The appeal was upheld in the District Court, the tribunal’s decision overturned and the case sent back for a new decision. The process took more than two years.

A review of the 26-year-old tribunal was finished last July but the government is yet to announce its response.

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About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Compensation Hopes For Faulty Hip Implant Victims

Medical giant Johnson & Johnson is under mounting pressure to settle a class action launched against it by 4500 Australians who were fitted with the company’s infamous metal-on-metal hip replacements, after a US victim was awarded $8.3 million.

Lawyers representing the Australians fitted with the articular surface replacement (ASR) hip implants will return to court this week buoyed by the US case – which also revealed that Johnson & Johnson executives were told the implants were faulty but did not act.

Fairfax Media understands the Australian legal team may ask the Federal Court on Wednesday to order Johnson & Johnson, and the designer of the implants, DePuy International, to attend a week of mediation in May in a bid to work out a settlement.

The ASR hips, implanted in more than 90,000 people across the world, began causing problems within six months of the first operations in the mid-2000s.

Australian national registry data showed last year that 44 per cent failed within seven years.

It has emerged that the high-carbon metal ball in the device was grating against its socket and sending metal fragments, rich in cobalt and chromium, into the bloodstream. Thousands of people fitted with the device were found to have symptoms associated with cobalt poisoning including severe pain, partial loss of vision and hearing, depression, lethargy and heart problems.

In December 2009, Johnson & Johnson discontinued supply of the implants in Australia. It wasn’t until August 2010 that DePuy International issued a worldwide recall. Patients were then forced to undergo major surgeries to remove the devices and implant safer ones.

But many have seen little improvement, suggesting that they have suffered permanent damage from the heavy metals that entered their bloodstream.

“When I look back on the letters I wrote to my surgeon in 2009 about the pain I was experiencing, I realize nothing’s changed,” said 72-year-old Peter Russell, one of the members of the Australian class action. “I can’t sit, can’t use my hands properly, I’m unstable on my feet, I can’t sleep – it wakes you up,” he said. “It’s affected every aspect of my life.”

The members of the Australian class action received a major boost earlier this month when a jury in Los Angeles ordered Johnson & Johnson to pay more than $8.3 million to Montana man Loren Kransky.

The case – the first of more than 10,000 similar legal battles set to take place – sets an important legal precedent, paving the way for a cascading series of damages pay-outs that is likely to run into the billions.

Rebecca Jancauskas from Shine Lawyers, one of three firms running the Australian class action, said the US decision would put pressure on the company’s Australian arm to consider a substantial settlement.

“It sends a very strong and clear message to Johnson & Johnson,” Ms Jancauskas said. “This is a clear case where they’ve put profits ahead of people and it’s a clear case where they need to compensate those who they’ve wronged.”

The US case has revealed internal documents that showed company executives were told by US surgeons that the design of the implants was faulty. Some doctors urged the device maker to slow or stop selling the implant, but these warnings were largely ignored.

Lawyers for the Australian victims claim that those fitted with the implants were “unwitting participants in a large unofficial trial being conducted by DePuy and its agents and affiliates.”

Johnson & Johnson and DePuy have said they will appeal against the US decision.

Lawyers in the Australian case said the company “deployed an international and interdisciplinary team to design the implants, which used up-to-date scientific and technical knowledge, and subjected the implants to an extensive testing program over several years”.

They say all hip replacement or resurfacing devices carry risks, and surgeons were made aware of this.

Should the case proceed to trial, a crucial element will be whether the victims can argue for exemplary or aggravated damages – damages awarded to punish and deter companies from future wrongdoing. Mr Kransky failed in his bid for punitive damages, which could have brought a payout in the tens of millions.

Another stumbling block could be Australia’s extremely tough damages regime, which places strict limits on how much money a plaintiff can be awarded. “It’s those who are in the slightly less severe category who could be most affected by our unjust damages regime,” said lawyer Ben Slade from Maurice Blackburn, who are also part of the class action. Mr Russell’s wish is for Johnson & Johnson to acknowledge its wrongdoing.

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About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Family Wins $63M Compensation From Johnson & Johnson

The family of a US girl who lost 90 per cent of her skin after suffering an allergic reaction to pain relief medication has been awarded $63 million in compensation.

Samantha Reckis was seven years old in 2003 when she took “Children’s Motrin”, a pain reliever manufactured by a subsidiary of Johnson & Johnson, to treat symptoms of a fever, the New York Daily News reports.
But the Massachusetts girl had an extreme allergic reaction to the medication and developed toxic epidermal necrolysis, a skin disease which can be fatal.
She suffered kidney, liver and reproductive damage, went blind and lost 90 per cent of her skin.

After six months in hospital she left weighing only 14kg, but the family’s lawyer Brad Henry said the girl’s ordeal did not end there.
“When they finally were able to wean her off pain medications and take out the ventilation, within a couple of weeks she had a stroke because of the liver damage,” he said.
“They had to drill through her head to relieve the pressure.”
In a lawsuit filed six years ago against pharmaceutical giant Johnson & Johnson, the family alleged the medication’s bottle was not clearly labelled with warnings of its risks.

But the pharmaceutical company defended the product as safe and appropriately labelled.
Toxic epidermal necrolysis is an extremely rare condition, but Mr Henry said that did not diminish the company’s responsibility.

“All we’re saying is that if parents are in a position to give a discretionary drug to their child, they should at least be given the option to know whether this is a good idea or not,” he said.

Source: WHDH, New York Daily News


Author: Sylvia Varnham O’Regan, Approving editor: Mark Worley

Pub Owners Seek Compensation For Flood Effort

Date: January 10, 2013
By: Adam Davies

Owners of the Murphys Creek Tavern, west of Brisbane, have launched legal action after their claim for business expenses incurred during the 2011 flood disaster was rejected.

Owners James and Lynette Barns sought $246,712 compensation from the Department of Communities, Queensland Police Service and Lockyer Valley Regional Council for out-of-pocket business expenses accrued during the 2011 flood disaster.
The documents were lodged in the Ipswich District Court by Toowoomba firm Condon Charles Lawyers.

Central to their claim is the State Government reversed its position recognising the tavern as serving as an evacuation and recovery centre at the height of the disaster and in the weeks after.

The claim includes: $39,000 for use of premises; $4000 for supply of food and consumables from hotel stock; $12,500 for loss of catering income; $11,400 for loss of bar income; $34,000 for co-ordination of evacuation centre activities; and $9300 for providing a forensic compound and storage centre.

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Lawyer Convicted of Contempt

Date December 21, 2012
Andrea Petrie

A Victorian lawyer has been convicted and jailed for contempt after he defied a court order with the full knowledge that doing so could lead to imprisonment.

David Brian Forster, a solicitor of 30 years, was jailed on Friday for a month but his sentence was suspended.
He was ordered to sign an undertaking that he would not commit any further breaches of the relevant court order, which was put in place early last year. It prohibited him from contacting lawyers retained by the legal industry’s watchdog, the Legal Services Board, in the board’s long-running legal matters against him.

The order was made after Forster hand delivered a letter to the office of the board’s barrister, Kristine Hanscombe, SC, which said he was having “emotionally very disturbing thoughts” about her. He gave examples of what he perceived to be her unfair behaviour and described her as “vindictive”.

He had also approached her in court about the same time and repeatedly called her a “monster” close to her face and in an intimidating way.
And despite being aware of his obligations, Forster, 63, sent an email to Dr Hanscombe in October that was intended to intimidate her and cause her to withdraw from the proceedings against him. He threatened to make applications and complaints against her to the Legal Services Commissioner in the hope she would disqualify herself from acting as legal counsel against him.

Forster had submitted that when he sent the email he was preoccupied with his many legal matters, was tired, stressed and overwhelmed by the forces against him, in addition to forgetting about the order’s existence. At the time he had three matters before the Court of Appeal, and had mediation approaching with the Legal Services Board, in addition to seven matters before the Victorian Civil and Administrative Tribunal.

But the Victorian Supreme Court Justice Karin Emerton was satisfied beyond reasonable doubt that Forster’s failure to comply with the order was deliberate and this failure was not merely casual, accidental or unintentional.

On Friday, Justice Emerton said she believed a one-month jail term, suspended for 12 months, was the appropriate penalty.
She said she believed the threat of jail, rather than a fine, was the only way Forster would realise the seriousness of his offending, which was made worse by the fact that he was a lawyer and knew the importance of not interfering with the course of justice.

Forster told Justice Emerton he had received bills for $1.3 million from receivers and $1.4 million from the Legal Services Board but she ordered him to pay the board’s legal costs on an indemnity basis.

Forster was investigated for unlawfully double-billing clients involved in Australia’s longest-running compensation battle among other serious trust accounting breaches.

Formerly of Hollows Lawyers, Forster handled 89 of 214 personal injury claims against the Australian government by survivors of one of the nation’s worst peace-time disasters, the 1964 collision between the navy destroyer HMAS Voyager and the aircraft carrier HMAS Melbourne.

After allegations that Forster had misappropriated funds relating to the case, the Legal Services Board refused to renew his practising certificate in September 2010.

He appealed the board’s decision to the Victorian Civil and Administrative Tribunal and lost.
VCAT concluded that he was not fit to practise based on his credibility as a witness, because of the trust account irregularities committed by his law practice and because he had behaved “dishonestly and put his interests ahead of his client”.

His legal firm has been placed in receivership but because provisions in the Legal Profession Act state that a person is entitled to practise until all of their appeal rights have been exhausted, Forster continued working.

He still has multiple appeals pending, in addition to having several other matters before the tribunal.

Last month the Court of Appeal ordered Forster to stop practising until his legal matters were finalised.

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Australian Surgeon Sues Google Over ‘bankrupt’ Auto-complete

A Port Macquarie surgeon is suing Google for defamation over an auto-complete search suggestion that he believes has cost him clients.
Google has been involved in several lawsuits around the world in the past year revolving around its autocomplete suggestions and has increasingly been held responsible for content on its search pages.

The suit, filed by Dr Guy Hingston in the US district court in California, claims that when you type “Guy Hin …” into Google the words “Guy Hingston bankrupt” appear in the auto-complete. He claims this is defamatory as he is not bankrupt.

Dr Hingston’s Australian lawyers Beazley Singleton had written to Google Australia in December threatening legal action. The firm wrote Dr Hingston had “lost a number of patients and financiers [who] are refusing to deal with our client as a consequence of the reference on Google which is associated with his name”.

The complaint, seen by Fairfax Media, claims Dr Hingston’s career as a breast surgeon depended on maintaining a good reputation which had been damaged after Google had shown him in a “false light”. He is seeking at least $75,000 in damages plus court costs for the “significant harm and economic loss” caused by the matter.

According to a Port Macquarie News report from January 2009, an aviation group owned by Dr Hingston, CoastJet, closed its doors and went into administration two-and-a-half years after he bought it. He told the paper the main reason for CoastJet’s demise — which reportedly resulted in the loss of 30 jobs — was the loss of a $2.8 million deposit on two new jets when American company Eclipse Aviation went into bankruptcy.

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Hospital Admissions Soar After Serious Dog Attack Numbers Rise

Miles Kemp
October 31, 2012

SERIOUS dog attacks leading to hospital admissions are at a record high level, prompting calls for both owners and dogs to undergo training.
There were 230 attacks across South Australia last year, an increase of 35 on the previous year.
Last year’s figures are the highest since 2006, when there were also 230 attacks.
The figures, released by the Dog and Cat Management Board, rely on hospital statistics showing 63 of the attacks, or 27.4 per cent, involved children younger than nine and people were hospitalised for a total of 673 days, and 71 hours in intensive care.

Australian Veterinary Association spokeswoman Dr Kersti Seksel said owners of dogs which were considered a problem should undergo mandatory training as well as the dogs themselves.
“Some dogs are dangerous and we probably should not have them as part of the community especially as many people have no idea of how to identify their dangerous behaviour,” she said.
Berger and Co personal injury compensation law expert Emma Marinucci said owners of dangerous dogs should make sure they had insurance for their animals as part of their home and contents insurance.
“If people are attacked by a dog they can pursue their rights to compensation because the dog owner is responsible,” she said.
Dr Seksel said people should take dog management seriously, even though most would never bite.
She said the most important problem for people to identify in potentially dangerous dogs was anxiety, the cause of most attacks.
“They are living creatures, they have emotions, they feel pain, and there are a lot of reasons why they need to be managed,” Dr Seksel said.

The Dog and Cat Management Board also reported an increase in minor dog attacks on people not requiring hospitalisation, rising from 893 to 1023.
Martin McKenna, author of the dog behaviour manual What’s Your Dog Telling You?, said some breeds had been turned into killing machines and were likely to attack people.
“They are bred to get into a fight at any moment and when they are in a fight go on forever until death.”
Dog training expert Olivia Harvey said a healthy dog would give several warning signs before biting a person.

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