Previously insurers have been relying on the Goudappel decision at the Presidential level in the Commission to deny workers payments of lump sums in cases where the level of whole person impairment was below 10%. Following clarification by the Court of Appeal the following is a summary of the state of the law. In respect of persons who have lodged a claim for compensation of any sort prior to the 19th June 2012, those workers:-
1. are not subjected to the new 11% whole person impairment threshold required to bring a lump sum claim under Section 66 of the Act;
2. can bring multiple claims under Section 66 as their impairment deteriorates;
3. can also bring claims for pain and suffering under Section 67 of the Act.
Any worker who has been denied lump sum compensation on the advice of an insurer prior to the 29th April 2013 should contact Attwood Marshall for further advice on 1800 621 071.
]]>Susan Delaney suffered brain injuries when she was injured when a motorcycle driven by her boyfriend crashed on a mountain road.
Ms Delaney’s boyfriend was a member of the Odin’s Warriors Motorcycle gang and was killed in the accident.
The Supreme Court approved a settlement that provided for Ms Delaney’s ongoing care which is the substantial amount of the damages. In severe brain damaged clients there is a requirement for around the clock care for cleaning, feeding, bathing and the other necessities of life. Susan Delaney’s mother Joan has been looking after her following the motorcycle accident. The settlement is a substantial sum to ensure the provision of care for Ms Delaney for the rest of her life.
Anyone insured unsure concerning their rights in these circumstances is urged to contact Attwood Marshall Lawyers on 07 5536 9777 or emailinfo@attwoodmarshall.com.au.
]]>Listeria is a type of bacteria that contains 7 species. Listeria is a serious infection which is caused by eating foods contaminated by the bacteria Ingestion of the listeria bacteria can result in listeriosis which can have fatal consequences.
By 13 February four fatalities had incurred including a New South Wales woman who had a miscarriage following ingestion of the Jindi soft cheese. The Victorian Department of Health has traced the outbreak to the Jindi Cheese factory in Gippsland, Victoria and this has resulted in a recall of 100 cheese products manufactured by Jindi.
The listeria incubation period is 70 days so there are still some people in the community who may have ingested the cheese and may still show symptoms at a later date.
Anyone suffering injuries from contamination from listeria is urged to contact Attwood Marshall Lawyers for legal advice concerning their rights. Contact us on 1800 621 071 or email info@attwoodmarshall.com.au.
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Section 43 of the Workers Compensation Act 1987 defines work capacity decisions by insurers. These decisions are final and binding on the parties and not subject to appeal or review except for a review under Section 44 or judicial review to the Supreme Court. The following are elements of work capacity decisions:-
(a) a decision about the worker’s current work capacity;
(b) a decision about what constitutes suitable employment for the worker;
(c) a decision about the amount an injured worker is able to earn in suitable employment;
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings;
(e) a decision about whether a worker is, as a result of the injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment;
(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)-(e).
The following decisions are not work capacity decisions:-
(a) a decision to dispute liability for weekly payments of compensation;
(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.
These provisions under Section 43 of the Act effectively leave workers without a right of proper review following the work capacity decision of the insurer. The only avenue that may be available is judicial review to the Supreme Court which is an expensive and legally complex exercise which may not result in a determination in favour of the worker and may also result in an adverse cost finding against the injured worker.
Under Section 44 of the Act a review procedure is put in place which requires the following steps to be undertaken:-
1. An internal review must be made to the insurer following a work capacity insurer within 30 days of the insurer’s decision;
2. If that decision is unfavourable to the worker, the worker then has 30 days to lodge a Merits Review to the WorkCover Authority of NSW;
3. A third right of review exists to have the WorkCover review referred to WIRO, the WorkCover Independent Review Office for a procedural determination following the outcome of the WorkCover review.
The original decision of the insurer remains in place even though the decision may be subject to a review. Legal practitioners cannot be paid or recover any amount of costs incurred in connection with a review under Section 44 of the Act.
This effectively means workers are left without legal representation following a weekly payments determination on a work capacity decision made by the insurer.
Some key contact points for reviews are as follows:-
1. Claims Assistance Service WorkCover – www.workcover.nsw.gov.au, telephone 131050;
2. WIRO (WorkCover Independent Review Office), telephone 139476.
Anyone affected by these provisions should ensure that the time limits are complied with in making an application for review, noting that solicitors are effectively removed from the process under the new legislation from the 1st October 2012 onward.
Anyone seeking advice concerning work place injury is urged to contact Attwood Marshall Lawyers on 1800 621 071 or email info@attwoodmarshall.com.au.
]]>Andrew’s family are eligible to receive death benefits under the Workers Compensation and Rehabilitation Act 2003 (Qld). Under Part 11 of the Act Section 200 there is a statutory lump sum death benefit left for dependent members of the worker’s family in the sum of $374,625.00. Further lump sums are payable for a dependent spouse and for children of the deceased worker. The compensation is payable to the legal personal representative of the deceased worker. Medical and funeral expenses are also recoverable under the Qld Workers Compensation Act.
In circumstances where the workplace death is preventable and there is a breach of a duty of care from the employer to the employee further damages are payable against the employer in the form of a dependency claim.
A dependency claim is not fettered by the statutory lump sum that is available under the Workers Compensation and Rehabilitation Act 2003.
The case above serves as a timely reminder to anyone working outdoors in construction, forestry and on remote worksites that venomous snakes and spiders can give rise to statutory worker’s compensation claims and in other circumstances may give rise to actions at common law against the employer where the injury is preventable.
Anyone wishing to seek advice concerning workplace injuries or fatalities is urged to contact Attwood Marshall solicitors on 1800 621 071 or email info@attwoodmarshall.com.au.
]]>Put simply the High Court held that for personal injury damages based on intentional acts, those damages are personal injury damages within the meaning of Section 198D of the Legal Profession Act 1987 (NSW). The respondents sued the appellant which was the insurer of the company that employed hotel staff. The respondents were assaulted by hotel security staff.
The respondents had been assaulted and commenced proceedings for trespass to the person claiming damages for personal injuries inflicted intentionally.
Damages were awarded in each case for an amount less than $100,000 and a declaration was made that the respondents’ costs for legal services were subject to Section 198D of the Legal Profession Act. Section 198D of the Legal Profession Act (now Section 338 of the Legal Profession Act) provided that the maximum cost for legal services provided to the plaintiff were fixed at 20% of the amount recovered or $10,000, whichever was greater. The definition of personal injury damages in the Legal Profession Act was identical to the meaning in the Civil Liability Act 2002 (NSW).
In the District Court it was held that the claims were for personal injury damages under Section 198D of the Legal Profession Act.
The Court of Appeal held that the costs for legal services were not subject to Subject 198D of the Legal Profession Act.
In the High Court on the insurer’s appeal it was found that the personal injury damages were defined under Section 198D of the Legal Profession Act.
The practical implications for this is that if proceedings are commenced on behalf of a plaintiff and those proceedings are likely to yield damages less than $100,000 then the legal costs of pursuing that claim will be heavily restricted. Plaintiffs would be strongly urged to consider making such claims where the costs are restricted to that extent. The case reference is as follows:-
CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS v JOHN CROSS; CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS v MARK GEORGE THELANDER; CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS v JILL MARIA THELANDER [2012] HCA 56
By way of contrast, the High Court also gave judgment in a decision concerning false imprisonment in the following matter:
STATE OF NEW SOUTH WALES v JAYSON WILLIAMSON [2012] HCA 57
The High Court held that in cases involving damages for false imprisonment, that those damages do not constitute a claim for personal injury damages under the Legal Profession Act Section 338(1) (formerly 198D). This means that costs are not restricted in respect of false imprisonment actions.
If you or someone you know has suffered injury and would like to know more about your potential rights, please contact Attwood Marshall today on 1880 621 071 for free, no obligation advice about your entitlements to claim.
]]>This is on advice from the Bureau of Meteorology which indicates that temperatures could soar to 45 degrees in some western areas of the State and could climb to 43 degrees in Sydney. Mr Watson has said that it was crucial that workers be protected from sweltering heat which could be fatal in some circumstances.
Common symptoms of heat fatigue at work include nausea, dizziness and general weakness. Employers are urged to provide for workers under extreme conditions. Employees exposed to such risks are encouraged to ensure adequate safety measures are implemented to minimise the risk of heat related injury.
Any families affected by a work accident, whether it be a serious injury or a death, should immediately contact our Personal Injuries Department for a free initial appointment and assessment of your prospects of success for a claim. Phone Rhiannon on 1800 621 071 or email her on rgarrett@attwoodmarshall.com.au.
See also related articles:
Under Queensland law a worker who is driving to or from work and is involved in an accident is covered for worker’s compensation. Certain disentitling provisions exist under the Queensland Workers Compensation legislation if there is a breach of the law or intoxication at the time of the accident. Workers are also covered under the Act for an existing injury in circumstances where the worker is obtaining medical or hospital advice or to undertake rehabilitation or to attend an examination and will receive payment of compensation.
Where a worker has suffered an injury in a motor vehicle accident the worker should immediately report the accident to the employer and WorkCover Qld and lodge a Medical Certificate to ensure that statutory benefits are paid under the Workers Compensation and Rehabilitation Act 2003.
If the worker is also injured in an accident which is the fault of the driver of another vehicle, the worker may also have further rights under the Queensland Motor Accident Insurance Act 1994.
The Motor Accident Insurance Act provides for a fault base scheme where the driver can establish negligence on the part of the other driver. This means that notification must be given under both Acts for all of the worker’s rights to be properly protected. The amount of damages under each Act is different and potentially a much larger claim for damages under the Motor Accidents Insurance Act can eventually be prosecuted if there are serious long term consequences arising from the injuries sustained in the accident. Strict reporting requirements exist under both sets of legislation and each worker should be aware that there are different time limits to claim under the separate Acts.
In the normal course of events a worker would be best advised to finalise their statutory entitlements under the Queensland WorkCover legislation with a WRI payout before going on to evaluate their entitlements under the Motor Accident Insurance Act. Certain procedural requirements must be met under the Qld Motor Accident Insurance Act with a general requirement to commence proceedings within 3 years from the date of the accident after the compulsory conference provisions have been complied with.
Workers need to reimburse the amount that they have received from WorkCover Qld from the proceeds of the Motor Accident claim.
Anyone insured unsure concerning their rights in these circumstances is urged to contact Attwood Marshall Lawyers on 07 5536 9777 or emailinfo@attwoodmarshall.com.au.
]]>Shane Bushel was working as a welder when he slipped into a hydraulic bailing machine at SITA’s plant in Camellia near Parramatta in 2009. As Mr Bushel tried to get out of the machine yelling for help a mechanical arm on the machine severed Mr Bushel’s legs and left hand. Mr Bushel is now confined to a wheelchair and has a set of prosthetic legs that he uses for stairs. Mr Bushel remained conscious throughout the event and it took 2 hours to free him from the machine. SITA Australia Pty Ltd were fined $130,000.00 by Justice Haylen and ordered to pay WorkCover’s legal costs. The recruitment company was also fined $117,500.00 and ordered to pay legal costs.
Both labour hire companies and the employer can be liable for workplace incidents in NSW. A different measure of damages applies to the host employer as opposed to the labour hire company.
A different method of calculation of damages is applicable in civil claims involving direct employers and host employers.
Anyone unsure of their rights concerning a workplace incident should contact Attwood Marshall Lawyers on 1800 621 071 or emailinfo@attwoodmarshall.com.au.
]]>Can you still claim compensation for your injury? How does it affect the owner?
Home owners in QLD and NSW usually hold ‘home and contents’ insurance over their property. These insurance policies contain ‘public liability insurance’ that cover people who are injured at the property in certain circumstances:
To make a ‘public liability’ compensation claim for injuries sustained at someone else’s home:
(a) You must have suffered injury in an incident at someone else’s home;
(b) The incident must have been caused by:
Most importantly:
Hundreds of injured people fail to make compensation claims that are available to them because they are scared that it might negatively affect the owner of the premises.
However, the property owner will NOT be personally liable for a claim that you make against them. The insurance company that has insured the property is the party that responds to the claim and pays out compensation – it does not come from the pockets of the property owner(s) themselves.
Eg: Sally’s house is 20 years old and can only be accessed by walking across the front outdoor tiles to the front door. Over time, various people who have come to Sally’s house have slipped on the slippery tiles and sometimes fallen. Sally knew of people slipping on the tiles and have often slipped herself. However, she did nothing about it – even when someone suggested that she simply spray some non-stick coating on the tiles.
One night, Sally invited her friend Timothy around for tea. Timothy walked across the tiles towards Sally’s front door when he suddenly slipped on the tiles and fell, breaking his wrist and twisting his ankle. Timothy was taken to hospital where he underwent surgery on his broken wrist. He was then off work for the next three months and continued to incur numerous medical bills for medication, physiotherapy, GP review and acupuncture. He also fell behind in mortgage payments.
With assistance from Attwood Marshall, Timothy was able to lodge a ‘public liability’ claim for compensation against the insurance companythat insured Sally’s home. A ‘slip test’ was conducted which found that the tiles were slippery and unsafe, and not in accordance with current Australian Standards.
It was determined that Sally was aware of a potential hazard to entrants of her property, yet failed to reasonably act to rectify the hazard so as to prevent injury to persons on her property.
The insurance company was ordered to pay Timothy a significant lump sum compensation payout for general damages, past and future medical expenses, past and future wage loss, and past and future care/assistance.
If you have been injured at someone else’s premises and are unsure as to your rights, please contact Attwood Marshall Lawyers on 07 5536 9777 for free, no obligation advice with one of our personal injury specialists.
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