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INJURIES OF THE SHOULDER – SERIOUS INJURIES & SERIOUS COMPENSATION

By Fortitude Legal Admin

INJURIES OF THE SHOULDER – SERIOUS INJURIES & SERIOUS COMPENSATION

The shoulder joint is considered to be one which has the widest range of movement in the human body. This being the case, injuries to any part of the structures making up the shoulder can be, and are, debilitating. Here, we consider the anatomy of the shoulder, common scenarios in which a person can suffer injury to this body part which result in compensation payments, the types of damage suffered and the types of compensation available.

Anatomy:

The shoulder is considered a ‘ball and socket’ joint which comprises of bony structures as follows:

  • The acromioclavicular joint (where the shoulder blade and collar bone meet);
  • The glenohumeral joint (where the humeral head, or ‘ball’, and glenoid, or ‘socket’, meet).

Holding this bony structure together is the rotator cuff, which operates to keep the ball nice and secure in the socket. This structure connects the humerus and scapula with tendons of four muscles:

  • The supraspinatus;
  • The infraspinatus;
  • Teres Minor;
  • Subscapularis.

The socket has a soft tissue called a labrum, and the joint capsule has a fluid sack to lubricate the joint.

How is the Shoulder Injured?

As with all body parts, there are many and varied ways that people suffer injuries to their shoulders, but some of the common mechanisms we see as expert personal injury lawyers include:

  • Direct blows (impact injuries) from moving objects or falling;
  • Falling onto an outstretched hand/arm resulting in a violent twisting;
  • Wrenching;
  • Lifting;
  • Overhead activities;
  • Overuse;
  • Overextension.

It is common for people to hear terrible noises such as “cracks”, “pops” and “snaps” or “tears” in frank (traumatic incidents), but sometimes the pain comes on with time and can be a burning or ‘stabbing’ pain in nature that keeps you awake at night. People find they are unable to roll onto or lie on that shoulder in bed. Injured shoulders sometimes also “grind” with movement.

In the context of incidents which may sound in compensation for personal injury, such mechanisms are often sustained in the following:

  • TAC claims:
    • Occupants of vehicles (drivers or passengers), cars, trucks, trains, trams in motor vehicle accidents: arms may be outstretched and braced against impact by holding the steering wheel, there may be side-on blows, or the arms may be raised to protect the face;
    • Pedestrians struck by motor vehicles: pedestrians can go under vehicles, be thrown up onto and over vehicles, and can be knocked to the roadway or into other objects;
    • Cyclists struck by, or taking evasive action to avoid, motor vehicles: cyclists have been known to land heavily onto their shoulders or strike their shoulders up on the bonnet of vehicles;
    • Motorcyclists struck by, or taking evasive action to avoid, motor vehicles: motorists failing to give-way or large vehicles, including trucks, where a driver has failed to perform a head-check.

 

  • Public Liability claims:
    • Slipping and falling onto an outstretched arm (from wet floors or spillages);
    • Tripping and falling onto an outstretched arm (from raised sections of pavement or other trip hazards);
    • Falling down stairs or from otherwise elevated sections (usually resulting from poor step demarcation and poor lighting);
    • Physical altercations (assaults);

 

  • WorkCover claims:
    • Heavy lifting of objects;
    • Awkward and unsupported lifting (for example, carrying an item or patient with co-workers who suddenly let go leaving you holding on);
    • Repetitive and overuse actions (pushing, pulling and lifting);
    • Working above the head;
    • Working with arms outstretched from the body;
    • Slips, trips and falls.

Common Injuries:

  • Fractures: fractures involving the ‘ball’ and/or ‘socket’ in what is referred to as the articular surface can be devastating injuries requiring surgery, often leading to risks of arthritis in that joint into the future;
  • Tendon tears: most tears occur in the supraspinatus tendon, but all other parts of the rotator cuff can be involved. Tears can be full thickness (as the name suggests, complete tearing and detachment from the bone) or partial thickness (the tendon remains attached to the bone, but can be thinned due to partial tearing);
  • Dislocations and Instability: the tendons of the rotator cuff can become loose from being overstretched and may mean the shoulder is prone to further dislocations;
  • Bursitis: the bursa (fluid filled sacs) that cushion the joint become inflamed and filled with excess fluid, irritated by movement (which in turn can impact arm mobility);
  • Adhesive Capsulitis/Frozen Shoulder: this is a difficult condition which can result in pain and stiffness of the shoulder joint, often resulting from the development of inflammation and scar tissue following trauma or overuse;
  • Nerve damage: the brachial plexus is a network of nerves sending signals from the spinal cord to the shoulder and arm; severe brachial plexus injuries (compressed or torn) can result in arm paralysis.

Radiology (Scans):

  • Shoulder X-Rays: will be used to identify fractures, subluxation, arthritis;
  • Shoulder Ultrasounds: will be used to identify large rotator cuff tears and other pathology such as bursitis;
  • Shoulder MRIs: will be used to identify rotator cuff tears and most other pathology;
  • Shoulder CT Scans: will be used to identify damage in the joint surfaces.

 

Common Invasive Treatments:

A person will be referred to an Orthopaedic Surgeon with a special interest in the shoulder and some of the procedures they may undergo can (depending on the nature of the injury and the person’s circumstances) include:

  • Total shoulder replacements to replace aspects of the damaged joint;
  • Partial shoulder replacements to replace aspects of the damaged joint;
  • Insertion of plates and screws to reduce and secure fractures (open reduction and internal fixation)
  • Rotator cuff repairs to repair tears to one or more of the tendons (some procedures are performed as traditional ‘open’ surgeries, and some are performed as ‘arthroscopic’ surgeries through small portals made by the surgeon to insert cameras and instruments). Bone spurs can be removed from the underside of the acromion (acromioplasty) and screws (suture anchors) and suture thread are used to repair the tear(s);
  • Shoulder reconstructions to reduce instability;
  • Hydrodilatation (an injection using cortisone and saline);
  • Cortisone injections;
  • Manipulation under anaesthetic.

 

Personal Injury Compensation:

As we have noted, given the importance and wide range of movement of the shoulder joint, we often find that shoulder injuries will satisfy the “serious injury” thresholds in TAC claims under the Transport Accident Act 1986 (Vic) and WorkCover claims under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), resulting in Serious Injury Certificates being granted, as well as satisfying the “significant injury” threshold for public liability claims under the Wrongs Act 1958 (Vic).

Therefore, if there was negligence as a cause of the person’s injury, loss and damage, it is possible to recover damages for pain and suffering (general damages), loss of earnings and loss of earning capacity and medical expenses and care. Damages can be significant for shoulder injuries.

We also find that shoulder injuries can rate well for impairment benefit lump sum claims under the TAC and WorkCover no-fault schemes.

If you have suffered a shoulder injury the subject of a TAC claim, WorkCover claim or Public Liability claim in Victoria, and particularly if you have been referred by your General Practitioner or Physiotherapist to an Orthopaedic Shoulder Surgeon (there are a range of Geelong Shoulder Surgeons, Ballarat Shoulder Surgeons, Western Suburbs Shoulder Surgeons, Melbourne Shoulder Surgeons who will treat people with compensation claims), it is in your interests to seek legal advice.

Contact us on 1300020618 for a free, no obligation chat.

At Fortitude Legal, We’re In Your Corner!

 

WHY MUST I PROVE MY CASE? THE BURDEN OF PROOF

By Fortitude Legal Admin

BURDEN AND STANDARD OF PROOF IN INJURY CLAIMS – DO I STILL HAVE A CIVIL CLAIM IF THE POLICE OR WORKSAFE DO NOT TAKE FORMAL ACTION IN AN ACCIDENT?

 

As personal injury lawyers providing advice to clients, we find that people are often surprised to hear that not only are they burdened with carrying the consequences of their injuries, but at law, they also carry the burden of proof in their claim for compensation for those injuries.

What does burden of proof mean?

What is meant by “the burden of proof” is essentially who has the task of proving a certain fact (the standard of proof against which a claim and evidence is measured before that fact is considered proven is dealt with next). The burden of proof in different issues and aspects in personal injuries claims can depend on the law surrounding a particular type of claim.

As a broad proposition, it is the case that the burden of proving that a particular injury, loss and damage has been suffered, and that the particular injury, loss and damage was caused by a Defendant (the person or entity against whom a claim is proposed to be brought against) will rest with the injured Plaintiff.

Therefore, if you are unfortunate enough to suffer personal injuries in an incident which may give rise to compensation, it is vitally important that you take steps to protect yourself early by preserving evidence. Our role will be to handle this for you and/or to advise you on how to do so.

To prove that a particular incident occurred, necessary evidence to preserve and obtain may include the following:

  • Photographs;
  • CCTV footage;
  • Witness details and accounts;
  • First responder notes and reports (such as from Police, paramedics, SES, CFA, and 000 call takers);
  • Physical items (vehicle and bicycle wrecks, pieces of vehicles or machinery such as debris, items of clothing or footwear, blood spatters, damaged safety gear and the like);
  • Contemporaneous records entered into medical notes (such as in hospitals and medical clinics).

As to the nature and extent of particular injuries and losses, we will obtain the following:

  • Medical notes from hospitals and your treating medical practitioners, including radiological scans;
  • Medical reports from your treating medical practitioners;
  • Medico-legal reports from independent medical examiners;
  • Financial materials such as income tax returns and payslips;
  • Statements from co-workers and family members.

Great care and attention needs to be given in the wording of requests for medical opinions.

There are some instances where the burden of proof may shift to a Defendant. For example, where a Defendant alleges that a Plaintiff was contributorily negligence as to the occurrence, nature and/or extent of their own damage, the Defendant will have the burden of proving such an allegation. Also, it is common for Defendants to allege that a Plaintiff has failed to mitigate their own loss (that is, take steps to rehabilitate, retrain etc) – they must produce evidence to satisfactorily establish that.

Do not think simply because you are the one who has had injury inflicted upon you due to no fault of your own that you can sit back and compensation will materialise – you must prove your entitlement.

To what standard must I prove my case?

In civil cases based on negligence dealing with personal injuries and compensation/damages, all issues must be established “on the balance of probabilities”. This does not require absolute scientific certainty, but rather requires proving something on a more probable than not basis.

We often get questions from clients who are concerned as to what it means for their case if officials such as Police, WorkSafe or other statutory bodies elect not to press charges and prosecute a person or entity for what has occurred. Whilst it can obviously be helpful for a subsequent civil claim if this occurs and a conviction is secured against a Defendant, this generally will not be fatal to a Plaintiff’s proposed claim. In fact, it is commonplace.

That is because with, for example, Police looking into investigating a certain type of wrong doing in a motor vehicle accident, they are required to consider whether they can make out a charge to the criminal standard, which is “beyond reasonable doubt”, measured against the specific elements of a defined crime. This is a higher and more difficult standard than the civil standard. Also, although the consequences of an accident are highly relevant for the Police, the focus is often more so on the actions (including intent or otherwise) of someone who caused the accident in terms of assessing culpability. Things are more nuanced from a civil negligence perspective, in that a simple failure by a Defendant (such as a positive action or inaction) can lead to catastrophic consequences for an injured Plaintiff; it is common in road accidents to see one driver only issued with a fine for failing to give-way while the outcome of the failure to give-way may be fatal injuries or severe and permanent disability to the injured Plaintiff who was on the wrong end of the Defendant’s action/inaction. The same can apply with workplace accidents or incidents in public or private places where not even a fine can be issued. Provided you can nonetheless discharge the burden of proof to the requisite standard of proof, very substantial damages (pain and suffering, economic loss and in some cases, medical expenses and care) will be achieved regardless of the position the authorities have taken.

Although the standard of proof in a civil claim for damages based on negligence is a lesser standard to which a prosecution must make out a charge in a criminal matter, this does not mean a lawyer acting for an injured Plaintiff can be lazy or take less care in going about proving a client’s case: we at Fortitude Legal do the opposite (noting the burden you carry) and we will always undertake a forensic analysis and approach to our clients’ claims to give you the best prospects of success.

I didn’t have my seat belt on.  Do I still have rights?

By Fortitude Legal Admin

I didn’t have my seat belt on.  Do I still have rights?

In writing this article, we want to make it clear that as personal injury lawyers we see the devastating impact of transport accidents every day.  Wearing a seatbelt is not only law but reduces the risk of injury or death in a transport accident.

In our work however, sometimes we meet people who have avoided seeking legal advice in this scenario, thinking they may be excluded from entitlements under the Transport Accident Scheme altogether.  This article is intended to provide information for people in those circumstances and to explain how their entitlements are impacted.  It is important that access to entitlements and medical treatment is understood, as the Victorian Transport Accident Scheme is there to assist those injured in transport accidents.

Entitlements

When a person is injured in a transport accident and not wearing a seatbelt, they are still entitled to compensation in accordance with the Transport Accident Act 1986 (Vic) including the following:

No Fault Entitlements

No Fault entitlements payable by the Transport Accident Commission (TAC) include:

  • Medical and Like Expenses
  • Income Benefits
  • Impairment Benefit

Common Law Rights

 Prior to being able to claim Common Law Damages, the injured person is required to first establish that their injuries meet the definition of serious injury.

In a claim for damages under the Transport Accident Act, Common Law damages are payable for pain and suffering and economic losses.  Medical and like expenses are not typically able to be claimed and are usually preserved following an award of common law damages.

A serious injury can be proven by establishing a permanent whole person impairment of 30% or more in accordance with the AMA Guides 4th Edition; or

Demonstrating a serious injury via the “narrative test”.  The narrative test defines serious injury as:

  • Serious long-term impairment or loss of a body function; or
  • Permanent serious disfigurement, such as scarring; or
  • Severe long-term mental or severe long-term behavioural disturbance or disorder; or
  • The loss of a foetus.

Initial application via the narrative test is made to the TAC.  Should the TAC deny the serious injury application, a court proceeding is able to be issued to request a County Court Judge to grant leave to the injured party to proceed with the claim.

Negligence

 In order to successfully demonstrate negligence, the injured person would need to establish that the accident was due to the negligence of another party.  Negligence is established when a party other than the injured person has failed to take reasonable care for the safety of the injured person and that failure is a cause of the injured person’s injury.

Circumstances where negligence is typically established in a transport accident can include the failure of a driver to take reasonable care for the safety of others; the failure of a council or roads authorities to take reasonable care of roads, or road related areas; and the failure of animal owners to keep animals secure and off the roads.

For the purpose of this article we will referred to the negligent party as the Defendant.  Depending on the circumstances of the accident, the Defendant is usually insured by the Transport Accident Commission or in some cases, another insurer.

Where the failure to wear a seat belt becomes relevant is in the defence of a Common Law claim.  There are two possible arguments the Defendant may raise:

  • Voluntary assumption of risk (a complete defence); or
  • Contributory negligence (which may reduce a person’s entitlement to Common Law damages but not defeat it altogether).

 Voluntary Assumption of Risk

 The Common Law has a principle that a person who has voluntarily assumed the risk of the particular injury, will not be entitled to Common Law damages.

History shows however, that this is a particularly difficult defence to establish, and it is more likely that an entitlement to damages will remain.  Put more simply, it is unlikely that the failure to wear a seatbelt will result in a complete defence, but rather, a reduction in damages by reason of contributory negligence.

Contributory Negligence

 Contributory negligence is a live issue in transport accident claims when the injured person is unrestrained.  In order to establish contributory negligence against an injured person, the defendant  carries the onus of proving that:

  1. The injured person was unrestrained; and
  2. The injured person’s failure to be restrained amounted to a failure to take reasonable care for their own safety; and
  3. That the injured person’s failure to take reasonable care caused their injuries to be worse than what they would have been if they were restrained with a seatbelt.

At Fortitude Legal we have been involved in claims where the negligent party has not been able to establish one or all of the above points.

  1. Whether or not you were wearing a seatbelt is disputed.

Where the defendant asserts that the injured party was not wearing a seat belt but that is disputed, evidence could be relied upon including:

  • evidence of another traveler or a first responder that can say that the injured person’s seatbelt was in fact on;
  • photographs of the injured person showing bruising caused by the seatbelt.

 

  1. Whether the insured person’s failure to be restrained amounted to a failure to take reasonable care for their own safety.

Where a vehicle is fitted with a seatbelt and the injured person failed to wear it, it is likely that this element would be proven.

Please note however that there are exceptions.  For instance, circumstances where the vehicle that the passenger is travelling in is not required to be fitted with seatbelts including:

  • Some Buses
  • Trams
  • Classic vehicles that may not be required to be retrofitted

Further, a vehicle user may not be required to wear a seatbelt in circumstances where they have received medical certification that states that because of medical unfitness or physical disability, it is impractical, undesirable or inexpedient that the person wear a seatbelt.

In these circumstances, an argument about failing to take reasonable care for their own safety would be unlikely to succeed.

If a person does not have the ability to make reasonable decisions in the interests of their own safety, they will probably also not be impacted by a reduction for contributory negligence.  An example may be a young child/infant.

  1. That the injured person’s failure to take reasonable care caused their injuries to be worse than what they would have been if they were restrained with a seatbelt.

It is very clear that wearing a seatbelt is generally the best way to avoid serious injury in the event of a collision.   The defendant does however have to prove in case that a failure to do so was causative of more serious injuries.  Whilst it is often the case, there may be an exception where the failure to wear a seatbelt was not causative of greater injury.  Each case turns on its facts.

The law surrounding unrestrained motorists is not straight forward and there are many considerations in the Common Law when determining the impact of being unrestrained on an injured person’s entitlements.

If you have a query in relation to a TAC claim, please contact our expert Transport Accident Team for a no obligation chat on 1300 020 618.

 

 

 

 

Injured Off Road? Whether Dirt Bike, Paddock Bomb or Quad Bike - You May have Rights!

By Fortitude Legal Admin

Injured Off Road? What are My Rights?

In the context of off-road motorcycling or driving, an accident does not necessarily have to occur on a public road in order for you to be eligible to receive compensation.  For example, if you are injured whilst riding or driving a Victorian registered motorcycle or car on private land you may be entitled to receive compensation as a result of your injuries.

It is also important to consider what is public land.  Public land may include privately owned land, including by government, when the land is open to members of the public.  For example, when the land is readily accessible as there have not been adequate attempts made to prevent access to an area (i.e. inadequate fencing/gates and/or inadequate attempts to stop vehicles from being ridden or driven in the area).

In some circumstances you may be entitled to compensation even if the motorcycle or car you were riding or driving is unregistered.  However, the nature of the vehicle will need to be considered, i.e. whether the vehicle is capable of being registered.  Factors that will be considered include, whether the vehicle is used (actual usage) on public land or is intended to be used (having regard for the nature of the vehicle in question) on public land. While past cases are useful, each case will turn on its own facts.

The scheme surrounding transport accidents and your entitlements is complex and there are strict time limits that apply.  It is important that you get appropriate legal advice from the outset to ensure that your rights are protected.

We can help you navigate the scheme, maximise your entitlements and make the decisions that are right for your future.

If you have a query, please do not hesitate to contact our expert Transport Accident Team for a no obligation chat.

I've Hurt my Back at Work - What are my Compensation Entitlements?

By Fortitude Legal Admin

I’ve hurt my back at work – what should I do?

If you have suffered an injury to your back at work, you might be able to make a claim for compensation.

You may have suffered a back injury in the course of your employment due to heavy lifting, a slip and fall, or unsafe work practices generally. Your work may require repetitive movements such as lifting and bending, placing strain on your back by way of gradual process over the course of many years. Ultimately, there is a long list of possible work-related causes and it is important to remember that your injury does not necessarily need to have occurred as a consequence of a single incident.

As a first step, it is important that you report your injury to your employer as soon as possible and ensure a WorkCover claim is formally lodged with your employer within 30 days of you becoming aware of the injury.

Am I entitled to the cost of medical expenses for my back injury?

The simple answer is yes. If your back injury is accepted as being worked related and you require treatment, the WorkCover agent is obligated to fund the cost, so long as the proposed treatment is both reasonable and necessary. Often, it can be necessary for your treating Doctor to justify the treatment to the Workcover agent.

Of course, a back injury, whether niggling or traumatic – can be difficult to shake. You should discuss any proposed treatment options with your general practitioner as soon as possible following your back injury.

Once you have agreed upon a necessary treatment regime, your GP should be asked to write to the WorkCover insurer for funding approval.

Am I entitled to lost wages for my back injury?

Following acceptance of your claim, if you have a reduced capacity to perform your pre injury duties as a consequence of your work related back injury, you are entitled to weekly payments of compensation from WorkCover.

To demonstrate a reduced or total incapacity, you will be required to obtain regular certificates of capacity from a treating practitioner.

For the first 13 weeks, weekly payments are payable at the rate of 95% of your pre injury average weekly earnings (‘PIAWE’). After 13 weeks, you are entitled to 80% of your PIAWE. Unfortunately, overtime and shift allowances are included in your PIAWE for the first 52 weeks only.

Am I entitled to lump sum compensation for my back injury?

 

In some circumstances, where you have failed to fully recover from your back injury, you may be entitled to lump sum compensation.

Once your back injury has substantially stabilised, in the sense it is unlikely to significantly improve or deteriorate, you may be able lodge a claim for permanent impairment benefits. If your permanent impairment satisfies the necessary threshold, you may be entitled to a lump sum. You are not required to prove that your employer was at fault in causing your back injury, to be entitled to an impairment benefit.

Further, if you have suffered a ‘serious injury’, and you are able to prove that your employer or a third party was negligent in causing your injury, you may be entitled to common law damages. Damages may be payable to compensate you for pain and suffering as well as loss of earning capacity.

Subject to a range of circumstances, damages at common law can be significant.

How we can help

 The claims process can be quite complicated.  As soon as you become aware that you have sustained a back injury at work, you should get in contact with our team of  workers compensation lawyers for expert advice. We can guide you through the process on a no win no fee basis.

The earlier that an expert lawyer is engaged, the sooner we are able to understand and build your case. This will help to ensure you get the best possible outcome.

For a no obligation free chat, please call us on 1300 020 618.

 

 

 

The Perpetrator has been Convicted - What are My Rights to Compensation?

By Fortitude Legal Admin

The perpetrator has been convicted, now what?

If you have been injured as a result of a crime, you may be entitled to substantial lump sum compensation. This could include a claim against the perpetrator and/or the institution who failed to protect you from the crime.

If the perpetrator has either pleaded guilty or been found guilty of a crime, you can make an application under the Sentencing Act 1991 (Vic) to claim compensation from the perpetrator, for the harm caused to you or your family.

This includes all crimes that cause you physical or psychological harm, including:

  • Sexual assault
  • Assault
  • False imprisonment
  • Family violence
  • Murder, manslaughter or other crimes causing the death of a loved one.

What compensation can I claim?

In a Sentencing Act application, the courts can order that the perpetrator pay you compensation for the following:

  • Pain and suffering as a direct result of the offence
  • Reasonable counselling and medical expenses
  • Expenses actually and reasonably incurred or reasonably likely to be incurred

The perpetrator must have enough assets or the financial means to pay you compensation to make a Sentencing Act application viable. Prosecutors can also apply for a restraining order that limits the ability of the perpetrator to deal with their assets, to stop them from depleting their financial resources.

It is important to seek expert advice from a personal injury lawyer early, as you only have 12 months from the date of the conviction or guilty plea to make a Sentencing Act application.

What if the perpetrator wasn’t convicted?

If the perpetrator was not convicted, you cannot make a Sentencing Act application, but you may still be able to recover substantial compensation for your injuries.

You can still sue the perpetrator for common law damages, as the standard of proof is much lower in civil cases – you only need to prove the crime occurred and caused you injury on the balance of probabilities (that it was more likely than not), as opposed to the higher test of beyond reasonable doubt in criminal cases.

You can also sue the relevant institution for common law damages for failing to protect you from the perpetrator. These institutions can include schools, religious organisations, orphanages, sporting groups, hospitals, medical facilities, prisons, juvenile justice facilities and other government and non -government organisations.

Will a Sentencing Act application impact my other compensation entitlements?

Bringing a Sentencing Act application does not stop you from being able to sue for common law damages from the perpetrator and/or the institution that was responsible for the abuse. A Sentencing Act application also does not stop you from making a National Redress Scheme application.

What support services are available?

If you have been affected by abuse, you can contact the following organisations for support:

If you would like to have a confidential chat with our expert lawyers, please contact your local team at Fortitude Legal who will handle your enquiry sensitively, discretely and confidentially.

Injured in a Transport Accident - How are My Losses Calculated?

By Fortitude Legal Admin

TAC Loss of Earning Capacity Benefits Rate

If you have been injured in a transport accident, you may be entitled to receive loss of earning capacity benefits.  The calculation of the rate of loss of earning capacity benefits is treated differently to loss of earnings benefits by the TAC as the TAC does not deduct tax from the payment.

Benefit Duration

Typically, loss of earning capacity benefits commence 18 months after a transport accident (after the loss of earnings benefit period has expired).  Persons injured in a transport accident are usually able to claim loss of earning capacity benefits for a period of 18 months following the transport accident, subject to providing certificates demonstrating that their transport accident injuries are causing incapacity for work.

In some circumstances loss of earning capacity benefits are able to be paid up until the date of the normal retirement age set for the injured person’s occupation.  If there is not a normal retirement age set for the injured person’s occupation, the benefit is payable until the person can apply for the aged pension.

Calculation Methodology – “Earner”

The TAC’s typical method of calculating an entitlement to loss of earning capacity benefits for an earner is to use the rate of pre-accident weekly earnings from the loss of earnings assessment to calculate the entitlement.  Click link here  for an explanation of the calculation of pre-accident weekly earnings in loss of earnings benefits determinations.

This methodology may be appropriate in most situations.  However, there are a number of circumstances where it may not be appropriate and the injured person could make a claim based on a higher rate.  For example:

  • A person is working part-time at the time of the accident and would have moved to full time employment by the time of the loss of earning capacity period.
  • A person was not working at the time of the accident (but had worked in the 12 months prior to the accident) and would have returned to employment by the date of the loss of earning capacity period.
  • A person was working on a full-time basis in lower paid employment and would have transitioned into higher paid employment by the time of the loss of earning capacity period (for example, had demonstrated a pathway to higher paid employment in an alternative industry whether through the completion of studies or the achievement of practical training).
  • A person is not able to demonstrate their full capacity due to carer responsibilities and is limited in the number of hours or type of work that they can perform (i.e. caring for an elderly family member or child) and that the injured person would have been relieved of these responsibilities at the time of becoming eligible for loss of earning capacity benefits.
  • In situations where an amount cannot be determined with the usual methodology (such as where the injured person was for example, a student), then the amount can be deemed to be 100% of average Victorian weekly earnings (of which the rate of loss of earning capacity benefits will be 80%).

The law surrounding loss of earning capacity benefits is restrictive in that it does not allow for an injured person to rely upon common law concepts of future capacity.  For example, an intelligent high school student who had not commenced a course in IT would not be able to claim loss of earning capacity benefits based on a computer programmer’s salary.

Calculation Methodology – “Non Earner”

There may be situations where a person is a “non-earner” but they nonetheless have suffered a loss of earning capacity. These cases are difficult. Fortitude Legal succeeded in litigation in a case relying on this provision (see Mawson v TAC [2021] VCAT 913). This case is believed to be the only case squarely addressing this provision. There, the injured person was 18 at the time of their transport accident. The injured person was unemployed and in receipt of Centrelink benefits. The injured person had endured a very difficult and impoverished upbringing, extremely limited education and had performed brief and sporadic work in the past. She was then very seriously injured in the transport accident. Essentially, given the injured person’s difficult background, the TAC attempted to argue that the injured person was effectively a ‘write-off’ in relation to having any earning capacity at the time of the transport accident. We found this to be an unfair and incorrect characterisation, effectively meaning that where you live, and the opportunities you have had in your earlier years dictate your entitlement. The President of the Tribunal found in the injured person’s favour, noting the overly pessimistic view of the injured person the TAC attempted to portray. Cases involving young people with limited work histories and difficult backgrounds are easy to be treated as ‘too hard’ – however, proper analysis of the law and gathering the required evidence, along with an open mind, can lead to successful access to substantial entitlements here.

Pre-Accident Earning Capacity – TAC Requirement to pay Loss of Earning Capacity Benefits at 80% of Pre-Accident Earning Capacity

The TAC will calculate a figure that they interpret to be the average gross weekly earnings by utilizing the above methodologies.  After calculating the average gross weekly earnings, the TAC is required to deduct the rate of tax payable on the gross amount (as at the time of the accident) and then apply indexation in order to calculate the pre-accident earning capacity.

Typically the TAC is required to pay the injured person at 80% of their pre-accident earning capacity.  However, if a person is a low income earner, there is a formula that allows an injured person to be paid up to 100% of their pre-accident earning capacity.

The 80% formula sets a statutory minimum figure, which is currently set at $692 and allows an additional sum of $196 for the first dependent and an additional $67 for every additional dependent.

The formula also has a statutory maximum figure of $1,300.

The statutory minimum and maximum figures are indexed each financial year.

Please note the following worked examples to assist in understanding the ways that the formulas are utilised:

  • John’s pre-accident earning capacity is $1,000 per week and he has a dependent partner and dependent child. 80% of $1,000 is $800.  However, given John’s income and his dependents he would receive loss of earnings benefits in the amount of $955 (Dependent formula of $692 + $196 + $67 = $955).  You will note that John is not able to receive loss of earning capacity benefits at a sum greater than his pre-accident earning capacity.
  • Andrew’s pre-accident earning capacity is $5,000 per week. 80% of $5,000 is $4,000.  However, given that Andrew’s pre-accident earning capacity exceeds the statutory maximum his loss of earning capacity benefits are reduced to the statutory maximum of $1,300.
  • Angus’ pre accident earning capacity is $900 per week and he does not have any dependents. 80% of $900 is $720.  The statutory minimum is $692.  Given that 80% exceeds the statutory minimum, Angus will receive the higher sum of $720.
  • Louis’ pre accident earning capacity is $50 per week. 80% of 50 is $40.  The statutory minimum figure is $692.  Louis would receive loss of earning capacity benefits of 100% of pre-accident earning capacity, i.e $50 per week.

Top up of Loss of Earning Capacity Benefits on Return to Work

The TAC is able to pay a partial loss of earning capacity benefit to an injured person upon return to part-time work provided that they continue to provide certification that they are incapacitated for work and also that the earnings from the part-time employment do not exceed the injured person’s entitlement to loss of earning capacity benefits.

Loss of Earning Capacity Benefits are a No-Fault Benefit

The TAC will typically pay the benefit regardless of whether the injured person was at fault for the accident.  However, there can be some circumstances where the person is not entitled to loss of earning capacity benefits.  These circumstances include:

  • The injured person was convicted of a serious criminal offence connected with the driving of the vehicle, i.e. manslaughter, culpable driving or dangerous driving causing death;
  • Driving a vehicle with a blood alcohol content of 0.24% or more;
  • Driving a vehicle while being impaired by a drug (please note that a conviction of the specific offence under the road safety act is required);
  • Refusing to comply with directions in relation to drug or alcohol analysis.

Impact of Loss of Earning Capacity Benefits on Common Law Damages

An injured person who is entitled to claim common law damages is able to claim economic losses after a period of 18 months has elapsed from the date of the transport accident.  In the event that the injured person is receiving loss of earning capacity damages, if the claim for common law damages settlement includes an amount for economic loss the entitlement to loss of earning capacity benefits will cease.

When bringing a claim for common law damages, the injured person is able to claim the gap between the loss of earning capacity benefits previously paid and the injured person’s actual losses.  In addition, the claim for economic loss is able to be made up until the injured person’s retirement age (i.e. not limited to the usual 18 month loss of earning capacity benefits period).

Challenging TAC Decisions on Loss of Earning Capacity Benefits

An injured person’s circumstances before an accident are often complex and the TAC’s processes often do not allow them to make the correct decision in relation to loss of earning capacity benefits.

At Fortitude Legal, we have assisted many people to successfully challenge their rates of loss of earning capacity benefits leading to greater payments being made to our clients.

We are also experienced in challenging decisions made by the TAC to terminate loss of earning capacity benefits prematurely.  This situation typically occurs when the TAC determines that the injured person has a capacity for work on account of the opinion of an independent medical examiner.

Our office has had great success in challenging Loss of Earning Capacity decisions through the No Fault Dispute Resolution Protocols.  If you, or someone you know, requires assistance with their claim for loss of earning capacity benefits, please contact us on 1300 020 618.

 

 

Transport Accident - Loss of Earnings

By Fortitude Legal Admin

TAC Loss of Earnings Benefits

If you have been injured in a transport accident and have an accepted TAC claim, you may be entitled to receive compensation in the form of loss of earnings benefits.

Benefit Duration

People injured in a transport accident are able to claim loss of earnings benefits for a period of 18 months following the transport accident, subject to providing certificates demonstrating that their transport accident injuries are causing incapacity for work.

Qualification for Benefit – “Earner”

To qualify for loss of earnings benefits, the injured person must demonstrate that they are an “earner”.  To establish that they are an earner, the injured person must be in full-time or part-time employment as an employed or self-employed person:

  1. At any time during the eight weeks immediately preceding the accident;
  2. During a period or periods equal to at least 13 weeks during the year immediately preceding the accident; or
  3. During a period or periods equal to at least 26 weeks during the two years immediately preceding the accident.

No Loss of Earnings Benefit Typically paid in first 5 days after accident

Typically, the TAC will not pay loss of earnings benefits during the first 5 days that the injured person was unable to work, unless the person is unable to establish acute financial hardship.

Benefit Calculated on Basis of Pre-Accident Weekly Earnings

Loss of earnings benefits are calculated on the basis of the injured person’s pre-accident weekly earnings.  The default position in relation to the calculation of a person’s pre-accident weekly earnings is to use the injured person’s earnings during the 12 months prior to the transport accident and to calculate a weekly average on the basis of these earnings.

Circumstances Where TAC Should Not Take the Average of Earnings During the 12 Months Prior to the Accident

There are circumstances where the TAC should not calculate pre-accident weekly earnings on the basis of the injured person’s average earnings over the 12 months prior to the accident.  These circumstances include:

  1. The injured person received a pay rise during the 12 months prior to the accident which entitled the person to earn more on a continuous basis (for example, move from part time employment to full time employment or change of job);
  2. The injured person was a full-time student at the time of the accident, but would have completed their studies after the transport accident, then the person would be entitled to have their rate of earnings recalculated on the basis of the amount the person would have received on completion of the educational course;
  3. If an injured person had entered into an arrangement for employment or self-employment at a particular date and time, the amount the injured person would have expected to receive in that employment;
  4. If an injured person is self-employed, the TAC should have regard to the earnings of the self-employed person in the 3 years prior to the accident. The TAC should not simply take an average of the three years earnings.  When calculating earnings for a self-employed person, the TAC should consider the costs incurred by the injured person in earning the revenue (i.e., the TAC will not calculate earnings on the basis of sales).

TAC Requirement to pay Loss of Earnings Benefits at 80% of Pre-Accident Weekly Earnings

Typically, the TAC is required to pay the injured person at the rate of 80% of their pre-accident weekly earnings.  However, if a person is a low-income earner there is a formula that allows an injured person to be paid up to 100% of their pre-accident weekly earnings.

The 80% formula sets a statutory minimum figure, which is currently set at $747 and allows an additional sum of $211 for the person’s first dependent and an additional $68 for every additional dependent.

The formula also has a statutory maximum figure of $1,500.

The statutory minimum and maximum figures are indexed each financial year.

Please note the following worked examples to assist in understanding the ways that the formulas are utilised:

  • John’s pre-accident weekly earnings are $1,100 per week and he has a dependent partner and dependent child. 80% of $1,100 is $880.  However, given John’s income and his dependents he would receive loss of earnings benefits in the amount of $1,026 (Dependent formula of $747 + $211 + $68 = $1,026).  You will note that John is not able to receive loss of earnings benefits at a sum greater than his pre-accident weekly earnings.
  • Andrew’s pre-accident weekly earnings are $5,000 per week. 80% of $5,000 is $4,000.  However, given that Andrew’s earnings exceed the statutory maximum his loss of earnings benefits are reduced to the statutory maximum of $1,500.
  • Angus’ pre accident weekly earnings are $1,000 per week and he does not have any dependents. 80% of $1,000 is $800.  The statutory minimum is $747.  Given that 80% exceeds the statutory minimum, Angus will receive the higher sum of $800.
  • Louis’ pre accident weekly earnings are $50 per week. 80% of $50 is $40.  The statutory minimum figure is $747.  Louis would receive loss of earnings benefits of 100% of pre-accident weekly earnings, i.e. $50 per week.

Top up of Loss of Earnings Benefits on Return to Work

The TAC is able to pay a partial loss of earnings benefit to an injured person upon return to part-time work provided that they continue to provide certification that they are incapacitated for work and also that the earnings from the part-time employment do not exceed the injured person’s entitlement to loss of earnings benefits.

Loss of Earnings Benefits are a No-Fault Benefit

The TAC will typically pay the benefit regardless of whether the injured person was at fault for the accident.  However, there can be some circumstances where the person is not entitled to loss of earnings benefits, or the compensation entitlement may be reduced:

  1. The injured person was driving the vehicle at the time of the accident without a licence;
  2. The injured person was driving an unregistered vehicle;
  3. The injured person was driving under the influence of alcohol or drugs;
  4. The injured person was convicted of a serious criminal offence connected with the driving of the vehicle, i.e., manslaughter, culpable driving or dangerous driving causing death;
  5. Refusing to comply with directions in relation to drug or alcohol analysis.

Impact of Loss of Earnings Benefits on Common Law Damages

The Transport Accident Act precludes a person from claiming any form of income loss sustained in the first 18-month period after the transport accident as part of a common law damages claim.  Therefore, any shortfalls on loss of earnings benefits are unable to be recovered.  As such, it is important to ensure that the claim for loss of earnings benefits is maximised.

Challenging TAC Decisions on Loss of Earnings Benefits

It is apparent that the nature of calculation of loss of earnings benefits can be complex and at Fortitude Legal, we regularly see circumstances where the rate of loss of earnings benefits has not been calculated appropriately.  We have been able to assist many people to successfully challenge their rates of loss of earnings benefits leading to greater payments being made to our clients.

We are also experienced in challenging decisions made by TAC to terminate loss of earnings benefits prematurely.  This situation typically occurs when the TAC determines that the injured person has a capacity for work on account of the opinion of an independent medical examiner.

Our office has had great success in challenging Loss of Earnings decisions through the No Fault Dispute Resolution Protocols. If you, or someone you know, requires assistance with their claim for loss of earnings benefits, please contact us on 1300 020 618.  It costs nothing to ask!

 

Injury Caused by Livestock Straying onto Road - Your Rights

By Fortitude Legal Admin

Being regional lawyers, we regularly come across injuries on the road caused by straying livestock.  The presence of a cow, horse or sheep on a public road does not of itself enable an injured motorist to obtain compensation from the owner of the livestock in the event of injury.

In order to be entitled to compensation for a collision between a motor vehicle and livestock, a claim for compensation must be lodged with the Transport Accident Commission (hereafter referred to as the TAC).  Should the claim for compensation be accepted, the TAC will be required to pay No Fault entitlements in accordance with the Transport Accident Act 1986 (Vic).

No Fault Entitlements

No Fault entitlements payable by the TAC include:

  • Medical and Like Expenses
  • Income Benefits
  • Impairment Benefit

These benefits are payable in circumstances where there is a collision between a motor vehicle and livestock, irrespective of whether the owner of the livestock is found tobe at fault.

Serious Injury

When an injury occurs as a result of a collision between a motor vehicle and livestock, the injured motorist is required to demonstrate that they have suffered from a serious injury prior to brining a common law claim.

A serious injury can be proven by establishing a permanent whole person impairment of 30% or more in accordance with the AMA Guides 4th Edition; or

Demonstrating a serious injury via the “narrative test”.  The narrative test defines serious injury as:

  • Serious long-term impairment or loss of a body function; or
  • Permanent serious disfigurement, such as scarring; or
  • Severe long-term mental or severe long-term behavioural disturbance or disorder; or
  • The loss of a foetus.

Initial application via the narrative test is made to the TAC.  Should the TAC deny the serious injury application, a court proceeding is able to be issued to request a County Court Judge to grant leave to the injured party to proceed with the claim.

Negligence

In order to successfully obtain damages from the owner of livestock the following would need to be established:

  1. The identity of the party responsible for keeping the livestock contained (i.e. the owner of the livestock or the owner of the property from where the livestock has strayed).
  2. The party responsible for keeping the livestock contained has failed to take reasonable steps to keep the livestock on the private property, which in turn has led to the transport accident. For example, it may be able to be demonstrated that the owner of the livestock has inadequate fencing or has left a gate open.

Often such landowners will hold policies of insurance, which include public liability coverage.

There may be circumstances where the owner of the livestock will not be found to be negligent.  For example a livestock owner may argue that they are not at fault when cows escape from a paddock as a result of tree unexpectedly falling over within a paddock and taking down a fence.

The circumstances of negligence involving livestock can be complicated and often require early investigations to ensure that the necessary evidence to prove negligence against the person(s) responsible for the livestock.

If these steps are not taken at an early stage, the injured party may lose the opportunity to obtain damages in relation to their injuries.

Damages – What is Available?

When the injury occurs as a result of a collision between livestock and a motor vehicle, damages may be available for pain and suffering and for pecuniary loss.  As the Transport Accident Act applies to these claims, the current threshold to be entitled to receive compensation for pain and suffering and pecuniary loss is currently set at $59,150.  If a claimant does not breach the threshold, they would not be entitled to receive any compensation.

The law currently sets a statutory maximum of $1,331,890 for pecuniary loss and a maximum of $591,910 for pain and suffering damages.

Please note that the common law time limitation to proceed with a claim via the transport accident act is 6 years for an adult.  Please note that extensions of time can be granted in exceptional circumstance and that alternative time limitation periods may apply in relation to minors or people under a disability.

 

What is the Workplace Injury Commission?

By Fortitude Legal Admin

On 1 September 2022, the Accident Compensation Conciliation Service changed its name to the Workplace Injury Commission (“WIC”).  The WIC is responsible for attempting to resolve disputes in relation to workers compensation entitlements between an injured worker and the WorkCover insurer via conciliation or arbitration. The introduction of the WIC led to some additional changes for workers including:

  1. Third parties (including lawyers) are able to submit a request for conciliation on behalf of a worker;
  2. Lawyers can appear on behalf of a worker at conciliation (provided that agreement is provided by WIC);
  3. WIC is able to dismiss a dispute from conciliation;
  4. A worker can elect to send a dispute to arbitration (rather than issuing proceedings in the Magistrates Court) after having received a genuine dispute certificate through conciliation.

In our view, the most important of the listed changes is the introduction of an arbitration process for injured workers.  The arbitration process is available to injured workers who were injured on or after 1 September 2022 and the dispute relates to:

  1. Weekly payments;
  2. Medical and like expenses (such as surgery, physiotherapy, or home help);
  3. Superannuation contributions;
  4. Interest on an outstanding amount.

Arbitration is not available in relation to:

  1. Access to information requests;
  2. Impairment benefits claims;
  3. Provisional payments;
  4. Return to work arrangements;
  5. Agreements reached at conciliation or arbitration;
  6. Medical Panel Opinions;
  7. A decision not to accept an application for conciliation or referral for arbitration;
  8. An issue that was previously finalised by a court or arbitrated;
  9. Injuries that happened before 1 September 2022;
  10. An injury that occurs outside of the Victorian Workers Compensation scheme.

The goal of the arbitration scheme is to provide a final decision to workplace compensation disputes that haven’t been resolved through conciliation.  The arbitration scheme aims to provide greater access to justice through a low cost, prompt and informal process and as an alternative to going to court.  The arbitration process allows for the worker, WorkSafe Agent or Self-Insurer to request legal representation at the arbitration.  It falls to the injured worker, WorkSafe Agent or Self-Insurer to make the application to the Arbitrator after electing to proceed down an arbitration pathway.

It is apparent that there may be circumstances where the arbitration scheme is the appropriate avenue for an injured worker to attempt to resolve a dispute.  We would anticipate that this situation may include medical disputes or claims for weekly payments of compensation for a limited financial value.

Fortitude Legal holds concerns about the imbalance in knowledge and power that eventuates from having a trained insurance expert being opposed to an injured worker in an arbitration hearing.

Current arrangements are for arbitration hearings to take place at the WIC premises on Spring Street in Melbourne.  The hearing of a matter is expected to take place in person, although it is anticipated that administrative hearings may be able to be conducted online.  Given that the access to justice is a prime focus of the WIC, it is important that immediate steps be taken to create arbitration rooms throughout Regional Victoria so that regional workers are able to be afforded the same opportunities as those of our metropolitan cousins.

Whilst we understand that there has not yet been an arbitration hearing conducted under the new system, we would anticipate that hearings will take place in the next month or two.

It is important that injured workers understand their rights prior to electing to go down the pathway of arbitration.  If you, or someone you know, needs assistance with their WorkCover claim, please contact Fortitude Legal on 1300 020 618.