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Nearly all claims for injury are governed by strict time limits. These time limits vary depending on the type of claim you have. It is important that you act quickly to ensure that your rights are not lost.

Are you suffering from an injury that wasn’t your fault?

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What to Do If You Are Injured by a Forklift at Work?

The details are scarce, but there are plenty of stories. A quick Internet search reveals that there were two highly-publicised forklift accidents in the Sydney area last year. One of them happened at a Banksmeadow business on November 29. The other happened at a Condell Park warehouse on May 11. Both were fatal, according to media reports.

Sadly, these were not isolated incidents. Between July 2014 and July 2016, for example, more than 1,300 workers were injured in forklift incidents. Three of the workers involved did not survive. Then, in 2017, SafeWork NSW prosecuted and issued fines to four NSW businesses totaling more than $830,000 “for incidents where workers were injured or killed by a forklift”.

In light of that, here’s what you need to know about how to avoid getting hurt in a work-related forklift accident and the actions to take if you are injured.

Know the basics

According to SafeWork NSW, a forklift or industrial lift truck is generally defined as a vehicle used to “used to lift, stack and transfer loads”. As such, they are commonplace in warehouses and other industrial or commercial workplaces throughout New South Wales.

In certain circumstances, forklifts are also dangerous. Serious or fatal workplace accidents involving or attributed to these vehicles usually happen when the victim:

  • Is hit by a forklift because of driver error, working too close to the forklift or inadequate traffic management;
  • is hit by a load a forklift was moving because the driver did not use an  attachment when one was needed, or while helping adjust or steady the load;
  • is not wearing a seat belt in a tip-over. The forklifts are prone to tipping while operators are turning on uneven or sloping ground.

Common injuries include but are not limited to:

  • Superficial and deep bruises;
  • broken bones;
  • crush injuries involving trauma to skin, bones, underlying tissue and internal organs;
  • back and spine injuries;
  • head injuries.

Due to the settings in which forklifts are most often used, construction workers and their counterparts working in manufacturing, food, trades, wholesale, transport, mining and agriculture are most likely to be involved in forklift accidents.

What are my options if I was injured by a forklift at work?

If you are an operator or another worker injured in a forklift accident at work, your options for legal recourse and compensation will depend on your specific situation.

Ordinarily, you will be entitled to claim workers compensation benefits and the accident is a motor accident within the meaning of the Motor Accidents Injuries Act which may mean that you can make a third party claim for damages.

You may be able to pursue a civil claim if you can prove that someone’s carelessness contributed to or caused the accident. However, the best way to ascertain this is to consult a qualified lawyer who can thoroughly assess your circumstances and determine whether you have a viable case.

You may also seek compensation if you can prove that your employer’s failure to maintain “suitable conditions” contributed to or caused the forklift accident. This is because all New South Wales employers are legally obligated to:

  • make safe work systems available;
  • take care of all relevant equipment/machinery and make sure it’s working properly;
  • provide a safe working environment;
  • ensure that all employees have sufficient training and supervision;
  • provide and maintain adequate facilities.

How compensation is awarded

Compensation in forklift accident cases is generally awarded based on several factors. These include but are not limited to the severity of the injury, your age, your overall health, and your occupation.

As in other types of personal injury cases, you may seek compensation for costs incurred due to hospitalisation and other treatment; medical expenses; rehabilitation costs, such as those incurred for physiotherapy and similar treatment; home assistance (if any); loss of past and future income due to the inability to work; and loss of superannuation (if applicable). You may also request compensation for “general damages” such as past and future pain and suffering.

A case in point

In one case, a 65-year-old man injured by a forklift at his Sydney workplace received more than $600,000 in compensation.

The victim reportedly suffered “multiple internal injuries requiring surgery as well as soft tissues to his neck and back” after a co-worker driving a forklift ran into him.

As a result the man had to take a considerable amount of time off work before he could return to light duty. And in spite of his age, he had reportedly intended to keep working  for at least five more years, or as long as he could do so. Unfortunately, however, he never recovered fully enough to do that.

Upon evaluation of the situation, the man’s lawyers determined he was eligible not only to make a Workers’ Compensation claim, but also to pursue a motor vehicle accident claim. This goes to show the importance of getting the proper legal advice from someone qualified to assess your situation as soon as possible. Don’t leave anything to chance. Contact us for an assessment of your forklift injury case today.

The Most Common Workplace Injuries and What to Do About Them

Workplace injuries take a serious toll not only on Australian employers and their employees, but also on the economy. As indicated by statistics gathered by Safe Work Australia, work-related injuries cost the Australian economy approximately $60 billion per year. That’s equivalent to approximately 5% of GDP.

With so much at stake, here’s what you should know about the most common workplace injuries and how to handle them.

The causes of most Australian workplace injuries

Safe Work Australia defines a “serious” workers’ compensation claim as one in which the “compensated injury or disease resulted in one week or more off work”. Preliminary data indicates that Australian workers filed 106,260 such claims in 2016-2017.

Preliminary data for that time also indicates that 40,330 or 38% of the workers who made this type of claim sustained injuries or experienced illness due to “body stressing”. More than 25,000 workers (24% of workers) sustained injuries due to slips, trips or falls; and more than 16,500 workers (16% of workers) got hurt when they were hit by moving objects.

Injuries and illnesses caused by the following accounted for the remaining serious workers’ compensation claims in 2016-17:

  • hitting objects with a part of the body;
  • mental stress;
  • other “mechanisms of incident”, such as biological factors, sound and pressure, roll over, slide or cave-in, and unspecified causes;
  • vehicle collisions;
  • heat, electricity and other environmental factors;
  • chemicals and other substances.

Some common types of workplace injuries

In addition to documenting the causes of most serious workers’ compensation claims in 2016-17, Safe Work Australia tracked the types of injuries the workers sustained. These comprised:

  • traumatic joint/ligament and muscle/tendon injury (41%);
  • wounds, lacerations, amputations, and internal organ damage (16%);
  • musculoskeletal and connective tissue diseases (16%);
  • fractures (11%);
  • burns (2%);
  • intracranial injuries (1%).

That’s a lot of medical jargon so now let’s take a look at what all of this really means.

In layperson’s terms, traumatic injuries involving joints, ligaments, muscles and tendons can also be classified as strains and sprains, depending on their severity. These types of injuries generally occur when poor body mechanics are used during strenuous physical activity, such as lifting and moving heavy objects. However, they can also happen when joints are stressed in slip/trip/fall accidents.

By definition, a wound is generally classified as a bodily injury in which the skin is breached (broken) and “there is usually underlying tissue damage”. Along with these types of injuries, cuts (lacerations) and amputation (the severing of a body part) are usually attributed to workplace accidents involving sharp tools/machinery.

Musculoskeletal disorders may include but are not limited to repetitive strain or repetitive stress injuries, such as carpal tunnel syndrome and tendonitis. When classified as such, they are usually caused by “overexertion or repeating a movement incorrectly for long periods”.

Fractures are simply broken bones. The severity of these types of injuries can vary drastically depending on the mechanism of injury. Workplace accidents that cause fractures include but are not limited to slips, trips and falls.

Next, the medical definition of a burn is “damage to the skin or other body parts caused by extreme heat, flame, contact with heated objects, or chemicals”. Although they account for a very small percentage of serious workplace injuries, the potential for burn injuries shouldn’t be taken lightly.

Although intracranial injuries, or head and brain injuries, also account for a small percentage of serious workplace injuries, they can be among the most devastating. These injuries can happen when workers are hit by moving objects, or when they slip, trip and fall.

What to do about common workplace injuries

If you’ve been hurt at work, it’s important to report the matter to your employer and seek medical attention as soon as possible. It is also important to get the proper advice regarding your rights and options for legal recourse, if any.

Beyond that, there are also certain precautions you can take to reduce the risk of getting injured in the first place. These include but are not limited to:

  • using proper body mechanics when participating in strenuous activities, such as lifting heavy loads;
  • identifying and removing any tripping hazards;
  • quickly identifying and cleaning slippery surfaces, or providing adequate warning;
  • wearing proper safety gear;
  • getting proper training in the use of heavy/dangerous equipment;
  • limiting repetitive activity by varying job tasks whenever possible.

To learn more about common workplace accidents and injuries, and your options if you have been hurt at work, contact us today.

How Long Should it Take to Settle My Personal Injury Claim?

Personal injury claims can happen in a myriad of different ways and arise out of many different circumstances. Depending on the precise details of those circumstances, your personal injury claim may last anywhere from a few months to several years.

It is rare for a personal injury claim to be resolved in a short amount of time. It is much more common to see a longer time-frame, particularly when certain factors are present. Often, personal injury claims take around eight months to a year, but this is only an average and will not reflect everyone’s experience. Below, we discuss some of the factors that will affect the longevity of your personal injury case.

Type and severity of your injury

Serious injuries will often require a longer amount of time to stabilise for the purposes of being able to be assessed by medical experts.  In such cases, clients will be subjected to a longer treatment regime and may require multiple surgeries before the impact of an accident can be fully understood.   Together, these factors work together to extend the period of time spent assessing what your damages should be.

Before you settle, it is important to know how long your required medical treatment will last, whether you have been given the maximum benefit of treatment following the accident, and what your long-term diagnosis is. Your lawyer should work closely with your medical team to correctly ascertain your damages and thus the compensation you deserve.

Patience

Sometimes, it will come down to how long you are willing to wait for a settlement. As your lawyer and the insurance company negotiate back and forth, it might take time for your lawyer to whittle down the expectations of the insurer. However, if the details backing your claim are weak, you are tired of the entire ordeal, or just want to avoid the stress of a hearing, you can settle more quickly.

It is advisable, however, to stick it out as early settlement may mean you are cheating yourself out of additional money for delayed or secondary consequences of injuries. Either way, be sure not to settle your claim without being fully informed of its value. Settlements are permanent and if you accept a low settlement early on, there will be no chance to revisit the amount if you later discover further medical complications.

Financial stability

If you decide you are willing to wait for as long as possible to get the best settlement that you can manage, you also need to consider whether you can handle, financially speaking, possibly waiting years to receive payment. It might turn out to be worth the wait, but you need to ensure that you will not be causing yourself any undue hardship in the interim.  In workers compensation claims and motor accident claims, wage loss compensation and medical expenses are paid by the insurer pending the case outcome.

Overall, a personal injury claim will take as much, or as little time as allowed by the injury in question and the injured person’s willingness to wait. When preparing your claim, it is important to share as much detail with your lawyer as possible. The more they know about your situation, needs and goals, the more accurate an estimation they can give you about the speed of settlement. If you or a loved one has been involved in an accident that resulted in injury, you may be able to file a personal injury claim. Contact a lawyer right away to begin working on getting the compensation you deserve.

New Dispute Resolution Process for Workers’ Compensation

Workers’ compensation claims can range from minor to extremely serious. The most recent statistics released by SafeWork Australia reveal that for the years 2016 and 2017 there were 106,260 serious Australian worker’s compensation claims. And while the frequency rate of serious claims per million hours worked decreased, the median time lost for a serious workers’ compensation claim increased by 32 per cent. Workers went from missing 4.4 working weeks on average to 5.8.

That amount of time off work isn’t good for the workers, their families, or their livelihoods, but losing part of their workforce is obviously bad for employers, too. To help alleviate some of the difficulties surrounding the claims process, the New South Wales Government decided to make changes that would streamline the options for workers when their claims are unsuccessful and, hopefully, make the entire dispute resolution process faster and more understandable.

Changes to dispute resolution for Workers’ Compensation

In October of 2018, the New South Wales Government announced changes to how workers’ compensation disputes will be decided. Those changes begin to take effect from early 2019. The goal of this shift was to improve the existing system by enhancing support services, streamlining the claims process, and eliminating duplication. Working together, these changes will hopefully improve the overall claims process experienced by injured workers in New South Wales.

Why change the system?

As the old saying goes: “If it ain’t broke, don’t fix it.” So what was broken about the old system? For one thing, claimants were found to have low levels of satisfaction with the existing claims system. Some of the issues that caused this dissatisfaction included: confusion about the claims process; lack of support; and the fact that the claimants had to fight against better prepared, better equipped insurance companies.

When workers wanted to file a claim, they were forced to reach out to several different organisations for opinions on whether or not they were even eligible to fight a decision. With a system so clearly biased against them, it’s no wonder that physically and psychologically injured workers were so dissatisfied.

Major changes

With sustainability in mind, the more ‘user-friendly’ system has made the following changes:

  • Workers will no longer be forced to go through multiple agencies to file a claim. The State Regulatory Authority (SIRA) and the Workers Independent Review Office (WIRO) will no longer undertake dispute resolution following internal review by an insurer. This will now be the responsibility of the Workers Compensation Commission, greatly simplifying the process.
  • SIRA will now field all employer and other system participants’ inquiries and complaints.
  • WIRO will now handle the complaints of injured workers that are not resolved in the first instance by their insurer.
  • The calculation process for pre-injury earnings has been simplified, which will increase the transparency of the claims process and streamline claims processing.
  • There will no longer be mandatory internal insurer review to determine work capacity.

These changes were decided after an extensive review that involved in-depth consultation with industry stakeholders, injured employees, and representatives from various organizations (SIRA, WIRO, and the WCC). The recommendations of the Legislative Council Standing Committee on Law and Justice were also considered when developing the reform.

A workers’ compensation claim can be extremely disruptive in the lives of many, especially if the initial claim is unsuccessful. Hopefully, these new changes to dispute resolution will help get injured employees the help they need more efficiently and with less bias toward the insuring entities. If you or a loved one have any questions regarding workers’ compensation, steps to take after a failed claim, or any other legal concern, please contact a lawyer as soon as possible.

What Types of Personal Injury Qualify for Compensation?

Over recent years, the number of Australian citizens who find themselves seeking hospitalisation for personal injury has been steadily rising. In fact, the Australian Institute of Health and Welfare reports that the number of hospital visits has increased over the past few decades. Likewise, personal injury claims have risen, making it imperative that everyone have a basic understanding of what personal injury law will cover and how to file a claim. If you or a loved one have suffered serious harm from the wrongful or negligent actions of another, you may be able to receive compensation through a personal injury claim.

Types of personal injury claims: Personal injury claims are the most commonly handled compensation claim and they cover a wide variety of accidents ranging from motor vehicle injuries, public slip and falls, negligence, on-the-job injuries, and more.

  1. Motor vehicle: Extremely common, personal injury claims arising from motor vehicle accidents happen daily. These claims involve all manner of vehicles, including cars, buses, trucks, motorcycles, mopeds, and may involve drivers, passengers, or pedestrians. When involved in a motor vehicle accident, you should contact the police, report to your insurance agency, and seek medical attention right away in order to best support both your claim and your health moving forward.
  2. Workers’ compensation: Provided to employees, workers’ compensation exists to protect workers from hazards in the workplace and prevent employer negligence by maintaining safety practices. You may be able to receive workers’ compensation if you are injured in the course of your employment or whilst present on the work site. It is important to remember that you are free to file a workers’ compensation claim without fear of reprisal, as that is a right secured to you by law. You should note that workers are able to file claims for immediate injuries as well as long term injuries including: diseases, aggravated pre-existing conditions, injuries sustained whilst travelling for work, and injuries sustained whilst receiving treatment for another work injury.
  3. Medical negligence: Often a source of very serious injuries, medical negligence occurs when a medical professional fails to act with the same level of care a reasonable medical professional would under the same circumstances. Because of the high level of training they receive and the importance of their profession, medical practitioners are held to a higher standard of care than the average citizen. Misdiagnosis, failing to appropriately inform a patient of potential risks, incorrectly prescribing medicine, incorrectly performing a procedure, and incorrectly interpreting medical results can all give rise to a claim for medical negligence.
  4. Public liability: A broad area of personal injury law, public liability covers a range of injuries. From slip-and-falls at the supermarket to psychological injuries, you may have the foundation of a claim if your injury was caused by the negligence of another. If the owner or proprietor of a public space has failed to expend the right amount of care to protect the safety of their customers, they will likely be held responsible.

Most important to know is that there are strict time limits to bring any type of claim, ranging from 28 days to three years.

If you or someone you know has any questions regarding a recent injury or possible personal injury claim, please do not hesitate to contact a lawyer today. They will have the experience, training and legal savvy to advocate for you and ensure you receive the compensation you deserve.

Workers’ Compensation for Slip on Construction Site

Construction workers experience some of the most dangerous conditions of any workplace. In the course of their day-to-day jobs, they handle heavy machinery, hazardous chemicals, extreme heights, and are exposed to the elements. Unsurprisingly, along with emergency services, these conditions make construction sites some of the most dangerous workplaces in Australia. According to Safe Work Australia, in 2017 the construction industry saw 33 on-the-job fatalities, with 21 reported in 2018 at the time of the report, making the construction industry the third-most dangerous industry in which to work.

Common construction hazards

Due to the highly demanding nature of construction jobs, there are a number of common causes for both injury and fatality:

  • Chemicals: Construction sites often make use of hazardous chemicals which can cause chemical burns or poisoning with immediate contact, as well as long term respiratory illnesses.
  • Noise: Construction sites use loud machinery and equipment such as power tools, jackhammers, bulldozers and more. Long term exposure to these noisy machines can result in headaches, ringing in the ears and even hearing loss, often called ‘industrial deafness’.
  • Exposure to the elements: Most construction work takes place outside while exposed to sun, wind and inclement weather. Sun exposure can cause sunburn, skin cancer, dehydration and heatstroke, particularly in certain areas of the country. Windburn can also damage skin, and inclement weather such as rain or high winds can lead to unfavorable working conditions and contribute to other mistakes and malfunctions.
  • Vehicle accidents: Construction work requires the use of heavy driving equipment including big trucks, earth-moving cranes and excavators which can cause a great deal of damage if involved in an accident, malfunction, or are mishandled. Additionally, when construction workers are on the road, they run the risk that drivers are not exercising the necessary level of caution and can hit them causing injury or death.
  • Moving or falling objects: Heavy lifting, either manually or with machinery, is a standard activity in construction work. Unfortunately, even a small miscalculation can result in death and injury with an object falling from overhead.
  • Slip & falls: As with any workspace, slip and falls are inevitable. However, with loose tools, debris and slick materials, construction sites are particularly rife with risk.
  • Height work: Many construction jobs deal with erecting buildings. This means working on ladders, scaffolds, or barely constructed upper floors. Falling from one of these areas will often result in extreme injury or death.
  • Electrocution: Working with exposed wires, faulty cords, or downed powerlines can result in a powerful electric shock.
  • Machinery: In addition to the larger equipment mentioned above, smaller tools such as power saws, drills, nail guns and electric sanders also pose a significant threat to safety as improper use or malfunction can cause cuts, punctures, bruises, lacerations and amputations.

Workers’ compensation for construction injuries

If a construction injury was caused by another person’s negligence, carelessness or a machinery malfunction, the injured party may be able to claim under a workers’ compensation scheme. All employers are required by law to provide their workers with: safe work systems, properly maintained machinery and equipment, safely maintained work environment, adequate facilities, adequate training, sufficient supervision and thorough instruction.

If your injury is the result of negligence by your employer to provide any of the proceeding work conditions, you may be able to file a claim and receive personal injury compensation. Luckily, this can cover injuries that affect you in the short term or in the long term, including late-onset injuries (cancer, illness, whiplash, etc.) and aggravations of pre-existing conditions (ligament tears, knee, back and hip injuries).

Claims against other contractors

Construction sites usually have many companies working with or around you. If a construction injury was caused by the negligence etc. of or more of these businesses, that is, a person who is not your employer, then you might also be able to file a claim against them.

What you may be able to claim

General damages: These damages cover the pain and suffering that you experience due to your injury. If your quality of life is permanently reduced, you may also be compensated in relation to that.

Medical costs, including hospital and rehabilitation: After an injury, you will be required to undergo diagnosis and treatment. Depending upon your injury, you may also need to receive rehabilitation service or home care, surgery, hospitalisation, or the use of special equipment such as braces or a wheelchair.

Loss of present and future income: While you are out of work to take care of your injury, you will not be receiving your usual wage. You may be able to recover lost wages, both in the present and in the future depending upon the circumstances and the severity of your injury.

Time Limits for Workers’ Compensation Claims

Like most areas of law, workers’ compensation involves serious time restrictions. These are made all the more serious by the potentially devastating long-term health effects that can go hand-in-hand with such a claim. The most pressing questions you will likely have are: “How much is this going to cost and where am I going to get the money to pay for it?!” When you have suffered an injury, the last thing on your mind will be meeting deadlines but unfortunately, in order to get the compensation that you are owed, paying close attention to time limits is a must.

When Can I Make a Workers’ Compensation Claim?

Four conditions must be met in order for an injured party to file a workers’ compensation claim. First, and most obvious, the worker must be an employee. Second, the employee in question must have suffered an injury or medical condition that a medical practitioner has diagnosed. The injury or medical condition must have been sustained in the course of employment and where the employment itself substantially caused the injury or condition. Finally, the employee has suffered or is suffering an economic loss due to the injury.

Notifying the Appropriate Parties

When the injury occurs, the injured employee needs to notify their employer of the incident and resulting injury or condition. The employer must be notified, in writing, of the injured worker’s name and address, what the injury is and how it occurred, and the date that the injury occurred.

Time Limits

In general, all workers’ compensation claims must be made within six months of the date that the injury occurred. However, this limit can be extended for up to three years if certain circumstances are met.

Exceptions

In circumstances where reasonable cause can be shown, the time limit can be extended from six months to three years. Reasonable cause may be shown in cases where there is an absence from the state, there has been a mistake, or in cases where the employee discovers their injury after the fact. In the event the injury or condition is not known until much later (for instance, whiplash, cancer, vision, or hearing problems), the time limit for filing a claim starts not at the time of the injury but at the time that the employee becomes aware of the injury and what caused it.

What Might Cause Someone to Miss the Deadline?

Aside from the obvious answers of mistake, confusion, or simple forgetfulness (all of which can be remedied by the involvement of a professionally trained workers’ compensation attorney) there are a few other reasons the claim might be made late.

Belief that the Injury Will Heal

As mentioned before, some injuries may take time to manifest in serious symptoms. Sometimes, what seems like a minor injury ends up having more serious consequences. In these scenarios, an injured employee might try and wait to see if the injury or condition goes away on its own. However, this can not only prevent them from recovering the appropriate amount of compensation, but might cause the injury to get worse in the meantime.

Fear of Retribution

Another reason that an injured employee might wait to report (or not report at all) is fear that they will experience discrimination from their employer. It’s a competitive world and no one wants to be seen as ‘troublesome’. However, there are laws in place to protect employees from being dismissed or punished for filing a workers’ compensation claim.qq

To meet important deadlines with any workers’ compensation claim, it is vital to act as soon as possible and get in touch with an experienced workers’ compensation lawyer who can help you stay on track with your claim.

Personal Injury Lawyers Sydney

What is WIRO?

Established in 2012, WIRO – the Workers Compensation Independent Review Office – is an independent statutory office. But what function does it serve and how can it help you?

In short, WIRO is meant to help resolve disputes between employees and insurers in workers’ compensation matters. If and when a claim is denied or an employer needs assistance navigating the world of workers’ compensation premiums, WIRO may be able to provide assistance. The distinctive thing about WIRO is that they attempt to resolve these issues for free while avoiding litigation and an adversarial process.

WIRO are contactable on 13 94 76.

Workers’ Compensation in Australia

From 2012-2013, SafeWork Australia reports that 117,815 serious compensation claims were made by workers throughout the state. Due to the physically demanding and dangerous nature of their jobs, it is unsurprising that the most common types of workers’ compensation claims were made by labourers, machinery operators and drivers. Back injuries are extremely prevalent and because they tend to have slow-to-appear symptoms, they often result in long lasting and expensive consequences. Other commonly claimed injuries include hearing loss, vision loss, shoulder injuries, and psychological injuries. All of these are claims that WIRO can help with.

How WIRO Can Benefit the Employee

Workers’ compensation exists to aid and protect workers who are injured in the course of their employment. A complicated insurance process means that many injured workers can become overwhelmed or frustrated by the often complicated claims process. Even more so when something ‘goes wrong’. What if the insurer decides you’re able to go back to work before you’re ready, or rejects your claim? In addition to the confusing nature of workers’ compensation, you would then be forced to try and fight against your insurer, potentially while dealing with the effects of a serious injury.

This is where WIRO can step in and help. WIRO focuses on dealing with the insurer in a number of ways. When a claim is denied, payments are delayed, medical treatment is debated, liability is refused, claim determination is overdue, or payments are reduced, WIRO may intervene.

How WIRO Can Benefit the Employer

While employers are often the first place injured employees go to for guidance, they are also faced with an abundance of challenges when coordinating with insurers to handle liability issues. Not only are they torn between protecting their employees and defending their business from liability, but they have the obligation of dealing with insurance companies. Again, WIRO may be able to help. By referring to WIRO, employers faced with workers’ compensation issues can receive aid with:

  • management of claims and handling;
  • calculating compensation premiums;
  • determining compensation premiums;
  • liability concerns (including claim acceptance or denial);
  • any action taken (or NOT taken) by the specific insurer.

WIRO’s Complaints Handling Process

First, WIRO requires you to seek a review of any compensation issues with your insurer before coming to them for aid. Once all other avenues of relief have been exhausted, then WIRO can step in an offer assistance. WIRO focuses on the use of Alternative Dispute Resolution techniques first and foremost and will only resort to a more formal and in-depth investigation if all other attempts at resolution have failed.

If WIRO cannot obtain a resolution to your problem, then WIRO may refer you to a WIRO approved lawyer for assistance. We here at BPC Lawyers are able to assist you in such an eventuality.

How Long do Public Liability Claims Take to Resolve in NSW?

Let’s face it, we live in an age of instant gratification. Thanks to the Internet, we’ve grown accustomed to having immediate access to just about everything we could possibly want or need. So if you’ve been injured in a slip and fall accident, or similar circumstances in which someone else is to blame, chances are that you want the matter resolved quickly and to your complete satisfaction.

If you’re not careful, however, this impatience may jeopardize your chances of getting the compensation you deserve. That’s why it’s important to work with an experienced personal injury lawyer who can not only manage your expectations, but also fight for optimal results.

During your first meeting, a qualified lawyer will gather certain information and interview you about what happened to determine whether you have a viable public liability claim. You can usually make this type of claim if you’ve been badly hurt on public or private property, but only in certain circumstances.

For example, you may have a viable claim if someone assaulted and hurt you in a car park with inadequate lighting and security. You may also have a viable claim if you were hurt when you slipped and fell on a wet floor at the movie theatre, or even if a dog bit you at the park.

This is because New South Wales law mandates that business owners and other organisations do everything possible to make sure that people are not in danger while on the premises.  In other words, they must make sure their properties are well maintained, that their employees have adequate training and that other measures are in place to ensure public safety. Any failure to fulfill these obligations which results in personal injury is legally classified as negligence.

Although it sounds like a cliché, one of the first things your lawyer will probably tell you is that every personal injury case is different. It’s therefore impossible to say exactly how long it will take to resolve your public liability claim in NSW. Some of the factors taken into consideration include:

  • The extent of your injury or injuries;
  • the extent of your treatment;
  • how long it takes to assess your long-term needs and what they are;
  • how long it takes the responsible party’s insurance provider to make a settlement offer (if at all).

If the insurer doesn’t make a reasonable settlement offer, or refuses to make any offer whatsoever, your only recourse will be to take the matter to court. If you and your lawyer agree to pursue this option, the court’s schedule will dictate how quickly (or slowly) the case goes forward. In general it can take 12 to 18 months until the case is actually heard.

Even if the case goes to court, there’s no guarantee you’ll win. In one documented case, for example, the court awarded $90,000 in compensation to a woman who brought a public liability claim against the Coles supermarket where she was injured when she slipped on a grape. In this particular case, the woman argued that the supermarket was negligent because it hadn’t removed a hazard (the grape) or done anything to make customers aware of it, and had been negligent for not clearing the floor of grapes and not warning customers of the slip danger. In response, the supermarket employed a legal defence called ‘obvious risk’.  Specifically, it argued that the presence of grapes on the floor constituted an ‘obvious risk’, and consequently it wasn’t legally obligated to warn customers. The court disagreed, ruling that the supermarket breached its duty of care, and awarded damages accordingly.

In another case, a woman brought a public liability claim against the owners of a shopping mall after she was hurt when she tripped over a kerb in an underground car park. The plaintiff here claimed that she couldn’t see the kerb due to fading paint and inadequate lighting. Unconvinced, the court sided with the defendants and ruled that kerbing was an ‘obvious risk’ for a trip injury. The Court also ruled that the woman’s distraction caused her fall, that there was sufficient lighting, and that the failure to refresh the paint on the kerb did not constitute an act of negligence.

Clearly there’s a lot to consider when you are deciding whether to make a public liability claim. At BPC lawyers, we have the knowledge and experience necessary to help you through every step of the process. Based on evaluation of your unique circumstances, we will determine whether you have a viable claim. If so, we will then work to ensure you receive the compensation you deserve through a settlement or court hearing. Contact us to learn more about how we can help you today.

What Are My Rights as a Passenger Involved in a Car Crash?

It’s something millions of people do every day – probably without a second thought – but in truth, you are risking your life every time you settle into the passenger seat in a motor vehicle. That’s because there’s always a chance that the person driving the car you’re in could do something to cause an accident, or you may get caught up in a crash caused by someone else. In other words, as a passenger you have no control over what happens while you are in the car. The good news, however, is that you do have certain rights as a passenger involved in a car crash.

Although applicable laws may vary, you generally have the right to:

  • Obtain certain information, such as the names, addresses, vehicle registration numbers, driver’s licence and insurance information of all drivers involved in the accident. If you have any trouble obtaining this material directly, you can get it from the police.
  • Receive help getting to a doctor or hospital if you were hurt. Even if you aren’t in pain immediately after the accident, you should still see a doctor who can treat and document any injuries that aren’t readily apparent.
  • Get a copy of the official accident report from the police.  Ask the investigating law enforcement officer when the report will be ready and how to get your copy.
  • Refuse requests for statements after the accident from another driver’s insurance company. If you do want to make a statement, be sure to consult a qualified personal injury lawyer first.
  • Consult with a lawyer specialising in this area.

Remember:

You are required to report the accident to the police within 28 calendar days after the accident unless a police officer attended the motor accident.

If you or a loved one were hurt in a car crash when someone else was driving, it is important to consult a qualified lawyer as soon as possible. Based on his or her experience, the lawyer can do an efficient assessment of the situation to determine if the injured party has a viable claim. If so, he or she can also determine who you should take action against, and what type of action is appropriate.

In some cases, this is an easy decision. Let’s say you sustained a nasty case of whiplash when the driver of the car you were riding in stepped on the accelerator instead of the brake, causing the vehicle to jump a curb and hit a building at a high rate of speed. In these circumstances, you would simply file a claim against the driver’s insurance provider.

But what if you sustained the same injury as a passenger in an accident involving another car? Should you file a claim against the insurance provider for the driver of the car you were riding in, or the other driver’s insurance provider? In this scenario, the answer is: “it depends”. Technically, you can make claims against both. However, in a situation in which only one driver was clearly at fault, you would only make a claim against that person’s insurance company.

If both drivers are at fault, insurance companies and lawyers will assess the contributory negligence of each driver to determine how blame is allocated and how compensation should be awarded. Because insurance providers seldom agree on the key issues, this process can be lengthy and contentious. Even so, chances are that you will be duly compensated -eventually.

But what if the insurance provider for one, or both of the drivers don’t want to provide the compensation that you are entitled to, or don’t want to compensate you at all? In those circumstances, you can sue the driver(s) and/or their insurance provider(s).

Depending on your unique circumstances, you may be able to secure compensation for:

  • Past and future medical expenses;
  • home care;
  • alterations made to your home that are necessitated by your injury/injuries;
  • loss of past and future income due to your inability to work;
  • loss of enjoyment of life (your inability to participate in activities that you enjoyed in the past).

If you were a passenger who was injured in a car accident, you may feel overwhelmed – especially if you can’t work and the bills are piling up. Even if you’re considering legal recourse, you may not know where to start. Or perhaps you just can’t cope with the thought of dealing with insurance companies or lawyers. With this in mind, it’s important that you have someone on your side who will help you get the compensation you deserve. At BPC Lawyers, we are here for you, so contact us today.

Can I Sue My Doctor for Delayed Cancer Diagnosis?

Imagine being diagnosed with cancer. Now imagine being diagnosed with advanced or terminal cancer and learning that, if it had been detected sooner, it could have been cured.

Imagine the shock. The disbelief. The fear. The anger. After all, this isn’t your fault. You’ve always had regular check-ups, exercised, followed a healthy diet. You’ve always listened to your doctors, because you trusted them. Now you’re wondering if you can sue the doctor(s) who failed you when it mattered most. The answer is: “yes”.

In Australia, mistakes frequently result in the misdiagnosis of colon, lung, cervical and oesophageal cancers. According to one estimate, roughly 12% of cancer cases involve failure of a doctor to take the appropriate medical actions for the patient’s welfare. Patients in this type of situation often sue their doctors. Specifically, they do so when their diagnoses are delayed due to their doctors’ failure to:

  • require follow-up appropriate screening and testing, such as biopsy, mammography, colonoscopy, CT scan or MRI;
  • spot common cancer symptoms or follow up with the patient concerning symptoms;
  • decipher laboratory and test results;
  • identify a condition as cancer (resulting in misdiagnosis);
  • acquire necessary patient information and history;
  • spend enough time with patients to address symptoms;
  • follow up with patients and the referred specialist(s).

In the scenario detailed above, you could also pursue a medical malpractice claim.  In order to be successful, however, you must generally prove:

  • the failure to diagnose your illness caused your suffering;
  • the doctor’s negligence was the immediate cause of your physical and/or mental harm;
  • the treatment provided by your doctor did not meet Australian standards.

You should also be aware that there are certain criteria that are specific to a medical malpractice claim based on delayed diagnosis. In Tabet v Gett, the High Court established that a plaintiff in a medical malpractice case could not win based solely on the argument that there was a possibility of a better result if the doctor wasn’t negligent. What this means in a delayed diagnosis case, is that you must prove that there would have been a significant difference in the treatment rendered and the result given a prompt identification of the disease.

For instance, you would have to present evidence that earlier identification and intervention would have kept your cancer from spreading to the extent that it has. Or you would have to prove that an inoperable tumour, for example, could have been excised if the doctor had diagnosed your condition sooner. You may also prevail if you could show that the chemotherapy or radiation therapy you must now undergo wouldn’t have been necessary if you had originally received a prompt and proper diagnosis.

Another important distinction is that in most medical malpractice cases, you can seek compensation for all past, current, and future costs based on the losses you have incurred. This may include but is not limited to compensation for pain and suffering, loss of income due to the inability to work, the inability to work, medical expenses and so forth.  In a delayed diagnosis case, you may also seek compensation for these losses, however the amount ultimately awarded if you win your case will be based on the expenses that can be directly attributed to the delay.

Having said that, applicable laws are constantly evolving and tend to be complicated. Because the outcome will largely depend on your unique circumstances, it is important to obtain proper advice if you are suffering from cancer that was not diagnosed promptly and you’re now considering legal recourse.

If you are thinking about suing your doctor, you should also be aware that there are strict deadlines (usually three years, depending on the jurisdiction) for doing so. Because the clock starts upon discovery of the delayed diagnosis, it is important to seek legal advice as soon as possible so you don’t lose your right to sue. Your life is already at stake so don’t leave anything to chance. Contact us today.

Injured at Work? Don’t Forget About Your Superannuation Fund

Most Australians know that they can file a workers compensation claim if they get hurt on the job. But did you know that may not be your only option? You may also be able to make a claim through your superannuation account. This is because superannuation programmes generally offer various types of insurance coverage. This article provides a basic overview to familiarise you with this issue.

In general, insurance provided through your superannuation will provide coverage for any illness or accident resulting in an injury that prevents you from working.  However, one of the most fundamental and crucial issues to understand in this context is that there may be different rules associated with the insurance provided through different superannuation programmes.

Some funds will only offer insurance to active members – those who are making contributions – while others will continue to provide cover once you’ve stopped contributing.  In some cases you won’t be eligible for the coverage unless you ‘opt-in’. If your superannuation fund offers ‘default cover’ for its members, however, you will automatically qualify for the coverage. Many policies also allow you to make a claim even if you are no longer working and are not currently insured – but only if you were covered at the time you were hurt.

Another important point to bear in mind is that just because you have coverage, it doesn’t mean your claim will be successful. It is not unheard of for a fund to deny a claim without a valid reason, and so it is essential that you consult an experienced lawyer prior to pursuing this option.

The Types of Claims Available

A lawyer who is well versed in this area can do a comprehensive review of your situation and discuss what you must do in order to prove total and permanent disability (TPD).  A TPD claim is one in which you must demonstrate that you can no longer do the type of work you were doing when you were hurt, or any type of work for which you are qualified based on your education, training or experience.

The reason this is so critical is that TDP, or ‘disability cover’, is the type of insurance coverage most often offered as ‘default cover’ by superannuation funds. Furthermore, successful TPD claims typically result in single (lump sum) payments rather than payments made over time. How much you will get depends on several factors including the extent of your injury and your policy terms.

Depending on your unique circumstances and the provisions in your superannuation insurance policy, you may also be able to make claims for temporary disability or income insurance.  If you make a successful claim for the former, you’ll most likely get monthly payments until you can resume working. A successful income insurance claim usually results in compensation for up to 80 percent of your average income, with payments being made for a maximum of two years. You should also be aware that you can usually make these types of claims through your superannuation fund even if you’re already receiving reimbursement through workers compensation, and that you can make your superannuation insurance and workers compensation claims simultaneously.

More Than One Super Fund?

Another question that often arises in this context is what you should do if you have more than one superannuation account. If you follow conventional wisdom, you may be tempted to combine all of your accounts so you don’t have to pay any fees or premiums on any funds not in active use. That can be detrimental for insurance purposes, however, because different superannuation insurance programmes have different rules. If you combine all of your accounts without getting the proper advice, you may end up with insurance that doesn’t meet your needs.

In summary, if you have a superannuation account, you also have options if you are hurt at work. In addition to pursuing a claim through workers compensation, you may also be able to make a claim through the insurance associated with your super fund. Because different insurance plans offered through superannuation funds have different rules, you may have to opt-in to ensure that you have cover. In most cases, you will probably have ‘default cover’ as an active participant in a super fund but in order to make a successful claim with this type of insurance, you must usually prove that you have TPD. Finally, you should always consult a qualified professional about the insurance ramifications before you consolidate multiple superannuation accounts.

If you have been hurt at work and you want to know more about your options for seeking compensation through your super fund, it is important to get proper legal advice as soon as possible. Contact us for a free case evaluation now.

Aviation Injuries: What You Need to Know

In this podcast, Accredited Personal Injury Law Specialist, David Ford talks about the types of injuries people typically sustain on flights and what are the necessary actions the injured should do under certain circumstances.

Speaker 1: You’re listening to a BPC podcast.
Dan: You might be surprised, but the numbers of people injured on flights both in Australia and overseas is relatively high. In this context, it’s not, of course, always related to plane crashes. Well, to find out more, I’m with David Ford, a personal injury lawyer from BPC Lawyers who is an expert in aviation matters. David, what types of injuries do people typically sustain on flights?
David Ford: I think the best response to that is that, of recent times, I have been involved in a number of cases where I’ve acted, those passengers that have been scalded by hot coffee or hot tea, and sustained, in two cases, second-degree burns.
Dan: Wow, that’s fairly significant. What about other injuries typically that occur on flights? Like I’m assuming people might trip over, they might go to the lavatory, or the bathroom and slip and fall. Do you see that type of thing occurring?
David Ford: My experience in my previous cases, has been more so that a passenger has got up from their seat to either go to the bathroom, or perhaps stretch their legs, and there’s been no warning that there’s turbulence about to be encountered, and therefore the seatbelt sign has not come on. I know of one example where a lady left her seat to go to the bathroom, there was no warning as such, and the plane did hit quite severe turbulence. And as a consequence, she ended up fracturing her ankle. That case was settled.
David Ford: Each case depends, of course, on its facts. And I’ve always said to not only my clients, but also my friends and family members, it’s always wise to have your seatbelt fastened at all times, anyways, when you are on an aeroplane during the journey.
Dan: David, now, you probably should mention that these type of accidents, and potential action, legal action, that might arise, it’s always predicated on that whole basis of negligence, isn’t it? Trying to be able to prove that the airline, in this case, was negligent, and did not take the appropriate steps to minimise a foreseeable risk. Is that how it works?
David Ford: That is correct. Look, you must prove negligence. The definition, are they an accident, is that it’s an injury, must be caused by an unusual or unexpected event or happening that is external to the passenger. But yes, you must prove negligence.
David Ford: I can give a good example of another case that I had several years ago where my client was with his wife on a journey to, flight to Bangkok. They were joined by a passenger, sitting behind them, who was quite frankly, a bit intoxicated, and quite boring in his conversation. And he was drinking from his duty-free bottle of bourbon, which you’re not allowed to do on a plane. The air hostess, I think, once they observed that, but didn’t say anything to the gentlemen. Long story short, there was a fight, ensued, when they told this chap to go back to his seat and he hit my client over the head with a bottle of bourbon.
David Ford: It wasn’t a big case as such, but it was certainly resolved because that’s another example of where the airline should have taken steps to minimise the risk to that particular passenger from being assaulted by a fellow passenger. That’s another example.
Dan: David, now, listen, in relation to jurisdiction, I’m just thinking that, how does jurisdiction play out? So if you board a flight here, say in Sydney, and you’re on route to Los Angeles, and a debacle happens somewhere in-between, where does the jurisdiction lie?
David Ford: The jurisdiction lies in the fact that Australia is a [inaudible 00:04:09] to the Montreal Convention. And we have adopted that protocol, which sets out how people … Well, a number of issues in relation to air travel, but certainly, Article 17 deals with the basis upon which you can make a claim for damages. If you are, for example, I’ve had clients that were injured four hours out of Dubai, but they left Sydney, or Brisbane, or any major city in Australia, that’s where the jurisdiction comes from. Because you’re in the Montreal Convention, and the fact that you embarked, or even in the process of disembarking upon an Australian city.
David Ford: I have set out on our BPC website, a very good summary of the reason why you are entitled to make a claim pursuant to the Montreal Convention. So any client that needs to seek that information, can go to our website and see that particular article written.
Dan: Now David, in relation to more catastrophic injuries sustained in accidents, how do they play out? I’m assuming it’s the same sort of regime?
David Ford: Look it is. I was not involved to any great extent, but I did assist a solicitor who was involved in seeking compensation for parties that had family members on the MH370, the Malaysian aeroplane that disappeared in the South Pacific Ocean. And also, that particular lawyer was also involved in claims involving the MH17 Malaysian flight that was shot down over the Ukraine. Basically, those sorts of cases are what is known as similar to compensation to relatives claim, where you can claim for damages for the fact that you had a person or family member on the plane who, because of their untimely death, you’ve suffered consequentially, a financial loss.
David Ford: Those are the sort of claims that can be involved if someone therefore is, unfortunately, all those passengers were deceased. But if, as the consequence of some negligence, there was a death on the plane, that similar sort of claim can be made.
Dan: Now David, time limitations, in relation to these types of matters, is fairly strict?
David Ford: That is a very important question. The answer simply is this. You have two years, from the date of the incident, in which to commence proceedings, seeking compensation, under Montreal Convention. That time limit cannot be extended. It is a definitive period.
Dan: Now, what about seeking legal advice very early?
David Ford: Look, again, that’s a very important question. In all cases where you have to prove negligence, and you’d be surprised, even where you think it’s a case where it’s a clearcut case, where the insurer, well it is the insurer of the airline, but where the airline is liable, it is so important that you do contact a solicitor as soon as possible. Because the event, for example, one of the clients that, sustained quite serious second-degree burns, it was very important that I got a statement from not only the husband, but the father, but also the mother, as the circumstances around the accident, because they were very much upset and distressed at the time of the accident. And it was important to get the factual background in relation to the accident from them, while it’s fresh in their mind.
David Ford: Look, it’s just trite to say, after being in the … practising  in this jurisdiction for nearly 40 years, is that, no matter how good your memory is, your memory will, to a certain extent, fade, especially if it’s been quite a traumatic type of experience. And not only that, it may well be that in addition to the immediate family members, they may have been provided with contact telephone numbers of other people that witnessed the incident.
David Ford: It is always important in any case, to talk to independent witnesses to find out their recollection and record that recollection. As quite frankly, the courts tend to accept, I think more readily sometimes, in circumstances such as that the evidence of independent witness, whose got no actual financial interest in the outcome of the case.
Dan: The choice of a lawyer is important as well, I mean, given that this is a bit of a specialist area of law, isn’t it, within the realm of personal injury law, generally?
David Ford: It is. It’s far more specialised in the sense that the liability questions are important, and have to be determined. The actual quantum of damages, most good personal injury lawyers are able to put that together. But, I think the best way to answer the question is that there are a number of firms that do act on behalf of the insurance companies of these airlines. You tend to get, I think, a bit of an understanding as to their modus operandi, who you’re dealing with. It’s of assistance, I think, if you do regularly practise in the area, as opposed to someone who’s attempting to make one of these claims on a first occasion.
Dan: David, thanks for joining me.
David Ford: I appreciate that, thank you.
Speaker 1: Thank you for listening. If you have any questions, please call BPC on 0282806900.

 

 

Can You Still Make a Compensation Claim Years After You’ve Been Injured at Work?

In this podcast, personal injury lawyer, Tim Driscoll discusses the possibility of making a worker’s compensation claim even years after the accident had happened.

New Speaker

You’re listening to a BPC podcast.

Dan:

Every year, thousands of Australians are injured at work through no fault of their own. The good news is that a majority seek legal help to recover compensation for any economic loss and medical expenses that they may have incurred as a result of the accident. Sadly, there are those that choose not to act, only to find out years later that the injury sustained is now having an impact. In this context, is such a person able to claim compensation years after the event? Well, I’m with Tim Driscoll, a personal injury lawyer from BPC Lawyers. Tim, what’s the answer for these people in this circumstance?

Tim Driscoll:

Well, yes, there is a very limited time period in which people must make a claim for compensation, particularly in workers’ compensation in New South Wales. For most workers, they have a period of only six months from the date of injury to actually lodge a claim for compensation. Now, there are some exceptions, however, and those exceptions apply for people who have what’s called a legitimate excuse for not bringing that claim within six months. Those exceptions effectively are about a person who was ignorant, or mistaken, or was outside of New South Wales, or for some other similar excuse, but still were able to make their claim within three years of the accident, but there’s some more joy for those people who make a, who have a claim for injury, which, for an injury which is substantial or has suffered what is called a serious and permanent disablement. For those people, they’re able to bring that claim outside of that three-year period, but it is a very unusual situation that the courts will grant any further leave above that last provision there.

Dan:

Tim, what about if, say, a worker is under the age of 18 at the time of the accident? Does that change anything?

Tim Driscoll:

Not really, not for workers’ compensation benefits. There are other jurisdictions where the age of the particular applicant may very well change that situation, but most people who have a work-related injury ordinarily are either apprentices, or those who are, obviously, over the age of 18. If they are, however, having some form of incapacity because of their age or what not, then they may be able to apply for some compensation outside of that six-month period for those issues, for those exceptions that I provided for, including ignorance, mistake, and so forth.

Dan:

Tim, what would be an example of ignorance or mistake?

Tim Driscoll:

Well, ignorance, I suppose, for example, if an injured worker was of the view held by, for example, a general practitioner or their employer that they didn’t have to make a claim within a certain period of time, or perhaps they’ve never made a claim for compensation before and thought that their rights were otherwise protected by some other means of compensation, then that kind of ignorance or mistake would most certainly see a higher degree of probability that they’ll overcome that six-month period restriction.

Dan:

Tim, I’m assuming that these applications, can be quite problematic, but I’m also assuming that to run one of these matters could also be problematic as well, given that, say, for example, an injured worker might have incurred the injuries 10 years previously, but yet in the duration of that time, there may well have been other injuries or antagonising factors that have also impacted upon that person’s ability or inability to continue to do work.

Tim Driscoll:

Absolutely, and the workers’ compensation legislation is very complex, and it certainly, when applying it to those very complex factual situations, means that injury workers should certainly seek some legal advice very quickly, because obviously, lawyers who are within workers’ compensation area of law, we’ve seen it all, and we know what to do and what issues come up within the Commission and how to deal with them appropriately.

Dan:

Tim, thanks for joining me.

Tim Driscoll:

Thank you very much.

New Speaker:

Thank you for listening. If you have any questions, please call BPC on 028 280-6900.

Social Media and Your Injury Claim

In the United States, suspects arrested in criminal cases are constantly warned that anything they say may be used against them in a court of law. In Australia, lawyers are now warning plaintiffs that anything they post on social media can and will be used against them by defendants and insurance providers in personal injury, worker’s compensation and other types of compensation cases.

These issues were to the fore recently in Foong v Ghaly, McLellan [2017] NSWDC 303. In this case, the plaintiff sought $20,665,550 in compensation for physical and psychiatric injuries sustained in two separate motor vehicle crashes she was involved in within a period of six months.

The plaintiff – who represented herself in the matter – argued that the injuries stemming from the accidents precluded her from working and sought compensation for economic loss. She also claimed that she required help because the injuries hindered her ability to do routine household chores and sought compensation for home care.

Finally, she argued against the use of her social media posts at trial, claiming they were “irrelevant and should not be tendered”. The judge disagreed and permitted their use for the following reasons:

  • the use of material posted on social media as evidence in civil and criminal matters is now considered routine;
  • relevant laws do not include any special provisions for use of such material, nor do they require that an opponent be advised they will be used;
  • this type of material is often proffered in personal injury cases when there is doubt about the claimant’s credibility and/or the extent of the injuries he or she is claiming.

The judge also allowed the material to be tendered because he couldn’t find any legal precedent for the exclusion of social media pages from personal injury cases. However, there is growing legal precedent for the inclusion of such material.

In the end the judge’s reasoning was well founded because the plaintiff’s social media posts did not support her claims. In fact, the judge found that the plaintiff’s “lack of credibility was overwhelming” and dismissed her claim that the injuries rendered her unable to work, based on some of her social media posts.

In the end, her award was just $1,250 in each case – $1,000 in each claim for past wage loss and $250 in each claim for future medical expenses.

Lawyers advise this is a cautionary tale not only for people seeking compensation in New South Wales, but elsewhere as well. This is because insurance providers – many of which have their own investigators – have learned what type of information to look for on various social media platforms. Something you post without a second thought could turn out to be incriminating evidence used at trial.

You should also be aware that your posts aren’t the only ones subject to scrutiny. Once they gain access to your social media pages, insurers will note your connections on each platform. They’ll then review any posts those people make about you. A seemingly innocuous comment such as, “it was great to see you at the family barbecue last week”, or photos of you at the family barbecue on someone else’s timeline, could be used as evidence against you in a case where you are seeking compensation as a result of, for example, the psychological impact of your accident/injuries on your desire to socialise (or lack thereof).

As we have seen, insurers will use material sourced from your social media and related accounts not only to prove that you weren’t as badly hurt as you claimed, but also to show that you are still capable of working, and the like. This is largely because, as the judge opined in Digby v The Compass Institute Inc & Anor [2015] QSC 308 (‘Digby’), Facebook is akin to a “modern day diary,” and “therefore most likely disclosable by the plaintiff”.

Digby is widely recognised as “the first to involve an order by the Court for a plaintiff in a personal injury claim to provide a copy of all material contained in their Facebook account to the defendant insurer.

Nevertheless, the Digby case appears to have opened Pandora’s box.  As a result, if you are a plaintiff in a compensation case, you should exercise caution when using social media or refrain from using it at all until the matter has been resolved.

You should also be truthful, thorough and accurate when reporting a work-related or personal injury, especially if you plan to seek legal recourse. Although it may seem beneficial to embellish the ways in which the injury has affected your life, it is crucial that you refrain from doing so as this is rarely the case.

This is an emerging area of the law where new developments are likely to surface. If you have any questions about the use of social media in connection with personal injuries, or how it may affect your case, contact us today.

 

Claiming Workers’ Compensation for Old Injuries – Is My Surgery Covered by Workers’ Compensation?

In recent years, changes to relevant New South Wales laws made it difficult – if not impossible – for people whose work-related injuries worsened over time to seek compensation for necessary treatment, including surgery. But this could soon change, thanks to a recent NSW Workers Compensation Commission ruling in the case of a retired railway worker.

The worker, Sam Baldacchino, hurt his knee on the job while working for Pacific National (then Freight Corp) back in 1999. The injury worsened over the years, causing the joint to deteriorate so much that doctors recently advised him to have it replaced.

By 2016, there was ample evidence that:

  1. The joint deterioration that occurred over time was related to a work-related injury sustained in 1999;
  2. He needed the knee replacement because of the initial injury; and
  3. The surgery meets the legal criteria for an ‘artificial aid’ under relevant laws.

Even so, the case went to arbitration, where the insurer made several arguments. After the Arbitrator found its first contention lacked merit – namely that the surgery was unrelated to the initial injury sustained on the job – the insurer raised two additional contentions about Mr Baldacchino’s right to “claim surgery.”

First, the insurer pointed out that he was no longer eligible for additional weekly benefits, and it had been more than five years since his receipt of such payments ended.  This is an important distinction because of two new provisions in section 59A of the Workers Compensation Act 1987.

Subsection 59A (1) specifically states: “Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.

Furthermore, subsection 59A(2)(b)(ii) defines a five-year compensation period as one applied to a work-related injury resulting in a legally acceptable degree of permanent impairment that begins on “the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).”

Based on these provisions, the insurer argued, Mr Baldacchino had no right to any compensation for his knee replacement surgery.

However, another new stipulation in section 59A of the Workers Compensation Act 1987, lists the exceptions to this rule. As per subsection 59A(6)(a), the time limits do not apply to “the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries).”

In this case, the insurer argued that the term “artificial aids” did not apply to knee replacement. In its opinion, the term only applies to “external” devices. However, the Arbitrator disagreed based on legal precedent, and his decision was upheld appeal.

Time will tell what happens next. Of course, the insurer could still take its arguments to the New South Wales Court of Appeal and even the High Court of Australia but even if it does, there is no guarantee it will prevail.

In any case, if the decision remains unchallenged, or if it is challenged and stands, it will undoubtedly make life easier for those who need knee replacements due to work-related injuries that have resulted in catastrophic joint damage over time.

Legal experts are also hopeful that other joint replacements will also be legally classified as “artificial aids” in this context, and there is some speculation that similar surgical intervention to treat worsening work-related injuries may also be included.

But what if you are currently suffering from the long-term effects of a work-related injury that doesn’t require joint replacement? Or what if you are suffering from the long-term effects of an injury that happened at work but wasn’t immediately evident?

In such cases, your chances of receiving compensation will probably depend on several factors. These include but are not limited to the nature of your injury, the extent of prior compensation, if any, and the nature of your claim for reimbursement.

Clearly, this is a complicated legal issue. And although there have been positive developments on this front, there is no guarantee that the Commission’s decision will stand. Furthermore, every case is different, and the outcome generally depends on the unique circumstances of each case.

If you were injured at work and the injury wasn’t immediately apparent, or it has gotten worse over time, it is important to seek advice from a qualified lawyer about any compensation to which you may be entitled. Because your physical, emotional and financial wellbeing are at stake, you should also seek advice from an experienced lawyer about your options if your claim has been denied. Don’t suffer in silence. Contact us today.

minor injury in motor accident

What is “MINOR INJURY?”

If you have been injured in a motor vehicle accident since 1 December 2017, then your claim is governed by the provisions of the Motor Accidents Injuries Act (NSW) (2017).

After you have lodged a claim form with the green slip insurer seeking compensation for your injuries, you might have received a letter from the insurer, in which they advised they have classified your injury as being “minor”.

Pursuant to Section 1.6 of the Act, a minor injury is any one or more of the following:-

  1. Soft tissue injury;
  2. A minor psychological or psychiatric injury.

A soft tissue injury is defined in the Act as the following:-

“an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.”

If your injury is classified as being minor, then you will only receive statutory benefits for a period of six (6) months.

However, after the six (6) month period of benefits has ended, you may still be in a position where you are losing income as a consequence of your injuries and also require further ongoing treatment.

In many cases, you may have suffered an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) and unfortunately, such an injury is also defined as a soft tissue injury for the purposes of the Act.

However, if the injury to the nerve results in radiculopathy then it is not a minor injury.  The criteria for assessing whether radiculopathy is present, is set out in the guidelines.  For radiculopathy to be considered genuine, two (2) or more of the following clinical signs must be present:-

  1. Loss or asymmetry of reflexes;
  2. Positive sciatic nerve root tension signs;
  3. Muscle atrophy and/or decreased limb circumference;
  4. Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
  5. Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

We can assist you in finding out whether or not your injury has been properly classified as being minor.  If your injury is not minor, then you may be entitled to far more significant benefits than the statutory benefits as imposed by the Act.

Fracture

If you have sustained a fracture, which should be easily identified by plain x-ray, then prima-facia a bone fracture is not classified as a minor injury.  It will be necessary, however, to determine whether or not the fracture has long-term consequences which may enable you to pursue a claim beyond statutory benefits for past and future loss of income and in certain circumstances, depending upon the seriousness of the fracture you may be entitled to receive damages for non-economic loss (your bodily injury which results in permanent impairment and pain and suffering).

Scarring

If you have sustained an injury which results in permanent scarring to your body then this is not a minor injury.  Depending upon the severity of the scarring and its location on your body, there is a possibility you may be able to claim past and future economic loss if as a result you have suffered a loss of income, i.e. modelling or in the alternative, you suffer from a psychological or psychiatric injury which is not minor as a consequence of the scarring.

Please contact the accredited Personal Injury Specialists at Beilby Poulden Costello who will assist you in obtaining the proper amount of compensation to which you are entitled.

WorkCover Have Rejected My Claim in NSW: What Can I Do?

If you were hurt at work or you have been diagnosed with a work-related illness in New South Wales, you probably feel as if you’ve been put through the proverbial wringer.  In addition to the pain and suffering you’ve experienced, you’ve had to deal with the emotional and financial stress stemming from mounting medical expenses and lost income due to your inability to work.  To make matters worse, you’ve just learned that WorkCover have rejected your claim. The good news is there is something you can do.

In order to dispute WorkCover’s determination, it is important to understand why your claim was rejected. Of course, the reason will depend on the specific circumstances of your case.  Whatever their reason, they must provide you with their decision in writing.

In general, WorkCover routinely denies claims because:

  • The person making the claim does not meet the legal definition for a ‘worker’;
  • The illness or injury wasn’t entirely work-related, or
  • The compensation sought is excessive given the nature and extent of the illness or injury.

WorkCover may also reject your claim if no one saw what happened; if there are any inconsistencies between your account of what happened (on the initial accident report) and evidence (including medical records); if there is reason to believe you were under the influence of drugs or alcohol at the time of the accident; or if there is reason to believe you have a pre-existing condition that caused or contributed to your illness or injury.  By far, the most common reason for denial, however, is the failure to report the accident to a supervisor immediately.

With all of that being stated, there are a couple of things to keep in mind.  First of all, your legal classification as something other than a regular, full-time employee does not preclude you from seeking worker’s compensation.  Secondly, lack of witnesses is not automatic grounds for denial of the claim if you sustained a serious or catastrophic injury and there is no doubt as to how it happened.

It is also important to note that the way in which you can dispute WorkCover’s initial determination depends on where you work, because there are different rules for doing so in each state. In New South Wales, you can begin by asking the insurance provider for a review. You can do this by stating your reasons for the request on the application form supplied by the insurance provider.  You should also provide additional evidence or information to support your case along with this form. You should get an answer within 14 days.

In a best-case scenario, WorkCover will reverse its previous decision and accept your claim.   If it doesn’t, you still have options.

If the insurance provider stands by its initial decision upon review, your next step is to seek assistance from the Workers Compensation Committee (WCC).  Operated by the Government, the WCC addresses disagreements between worker’s compensation claimants and employers or insurance providers.  Depending on the circumstances of your case, WCC may assign someone who is well versed in worker’s compensation law, called an arbitrator, to help resolve the matter.

Bear in mind, however, that the WCC will not accept any new evidence at this time. Instead, it will only consider the merits of material you initially provided on the accident report and request for review.

You should also be aware that you don’t need to do all of this yourself.  At a time when you and your loved ones are likely feeling intimidated and overwhelmed by everything you’ve gone through, it is important to retain a skilled and knowledgeable worker’s compensation lawyer who can thoroughly assess your case and fight for your rights. To learn more about how we can help if WorkCover rejected your claim in New South Wales, contact us today.

workers compensation claim for sychological trauma

Psychological Trauma at Work: Can I Make a Claim in NSW?

For many Australian workers, dealing with a stressful workplace is par for the course. Tension with co-workers or supervisors, deadlines, difficult clients or customers and constant doubts about job security can all make for a challenging environment. Sadly, many Australians have also experienced workplace bullying or harassment and now suffer from depression and anxiety. If you’re dealing with any type of psychological trauma sustained at work, you may be able to apply for workers’ compensation in New South Wales.

To make a successful claim on these grounds, you must prove that you meet certain standards. Specifically, you must provide adequate medical verification that you suffer from a permanent psychological injury or similar condition caused by your job that interferes with your ability to function normally.

In and of itself, a prescription issued by your own doctor for time off to recover from work-related stress is not sufficient proof. Instead, you must see an authorised specialist trained to assess your condition. At your appointment, he or she will do tests to determine the extent of the emotional and/or psychological trauma you sustained. The specialist may also consider:

  • Medical reports;
  • Test results;
  • Statements from relatives, co-workers and friends, and
  • Your own statement (s).

If the specialist finds it is no less than a ’15 percent impairment of your whole person,’ you should be able to make a worker’s compensation claim for a chronic ongoing condition.

Nationally, more than 7,000 Australians receive compensation for work-related mental heath conditions each year, accounting for roughly 6 percent of total workers’ compensation claims. However, the total workers’ compensation payments made for these claims is more than $540 million.  A closer look at government data for FY 2010-11 through FY2014-15 also reveals that the typical reparations made for this type of claim totaled $24,500 in comparison to $9,000 for all other claims.

Successful claims generally provide reparation for lost wages stemming from your inability to work, medical expenses, and ancillary costs. However, the amount you will receive depends on the specific circumstances of your case.

Before you make a claim, you should be aware that it is s unlikely you will prevail if your condition stemmed from any action that can be legally classified as ‘reasonable management action.’ This includes a job transfer, demotion, dismissal or reassignment, as long as your employer can prove it was ‘reasonable.’ Under this definition, for example, mandated participation in a job assessment may also qualify as reasonable action.

Even if you aren’t eligible to make a worker’s compensation claim, you may be able to pursue other legal recourse if you suffer from psychological trauma resulting from workplace bullying. This is because the Fair Work Act includes anti-bullying provisions allowing the Fair Work Commission to make orders to stop the behaviour from continuing. However, be aware that settling a claim in the Fair Work Commission may mean that you cannot make a claim for workers’ compensation.

By far, the worst thing you can do if you have experienced emotional distress or are experiencing significant psychological trauma stemming from work, is to remain silent. After you’ve seen a qualified mental health professional, it is important to get the proper legal advice. To learn more about how we can help you make a worker’s compensation claim or pursue other legal remedies, contact us today.

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How to Make a Public Liability Claim in NSW?

What is a Public Liability Claim

A public liability claim refers to a claim made for injuries sustained in public places in accidents caused by the negligence (failure to exercise reasonable care and skill) of a person or organisation.

For instance, let’s say you’re walking through a shopping centre and you slip and fall as a result of a spilt liquid on the floor causing an injury to you. The owner of the shopping centre possibly could have prevented the unfortunate incident by ensuring that their cleaning staff better maintained the centre’s floor.

Compensatory damages are available under the Civil Liability Act NSW 2002 as follows:

  • Past and future medical expenses;
  • Pain and suffering (past and future);
  • Past and future loss of earnings, including loss of superannuation contributions;
  • Cost of other assistance (domestic assistance, personal care provided by friends, family or professional organisations for the past and future).

Public liability claims derive from numerous accident types. Here are some examples:

  • Assault-related injuries;
  • Animal attacks (most commonly dog bites);
  • Injuries due to defective machinery;
  • A slip and fall in public spaces and facilities;
  • Food poisoning;
  • Sporting, recreational  injuries;
  • Physical assaults;
  • Sexual assaults;
  • Schools and playground injuries;
  • Aviation (planes, helicopters) injuries;
  • Maritime (boats, ships) injuries;
  • Hotels and other venues injuries;
  • Injury at a construction site;
  • School yard injuries;
  • Amusement venue injuries;  and
  • Injuries in rental premises (e.g. landlord/tenant).

Public liability insurance

In most cases, business (private or public) have public liability insurance for these types of incidents,  which essentially means that in making a claim against the business, you’re in fact making a claim against their insurer. Some people can wrongly assume they are pursuing legal action against the business and for that reason, do not follow through with a public liability claim, despite incurring significant inconvenience and financial hardship.

Notwithstanding this, it is not uncommon for people who have an accident in a public place to initially suffer from only a little pain and discomfort, choosing not to pursue a claim, only to later find that the injuries sustained were serious, requiring surgery. For this reason, it is often wise to seek medical attention regardless of the injuries sustained.

Proving a Public Liability Claim

In a public liability claim, the evidence of the incident is vitally important, because your lawyer will need to be able to demonstrate that:

  • The person or company at fault owed you a duty of care.
  • The person or company breached that duty of care.
  • As a consequence, you were injured and suffered loss.

Practically speaking, following an injury in a public place if you’re able, the following should be attended to.

  • The first thing you should do, when injured in a public place is to let the owner/manager of the business know.
  • Ensure pictures are taken of everything, the injury itself, the establishment, the object causing the injury.
  • Witnesses are very important, take notes of their names and phone numbers
  • Access any surveillance camera footage
  • Make a video recalling what happened right away
  • Seek medical assistance as soon as possible.
  • Seek advice from a specialised lawyer in personal injury claims.
  • Save all medical evidence, bills, receipts, doctor’s records and anything else proving you sustained an injury.
  • Financial documents are also important to prove a loss of income resulting from the accident.

Getting Help

Public liability claims can be difficult to prove, hence the need to ensure you collect as much evidence as possible as promptly as possible and seek legal advice.

These matters have very strict time limits that apply.