Category: Uncategorized

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!

 

Injured Personal Care Attendant – What Are My Rights?

Personal care attendants and other health care workers have the right to be safe at work.

Employers have an obligation to take reasonable care for the health and safety of personal carers, employed in both hospital and community settings. The responsibilities contained in the Workplace Injury Rehabilitation Compensation Act and the Occupational Health and Safety (“OH&S”) Regulations apply to all employees, including full time, part time and casual employees, as well as contractors who can be deemed workers in certain situations.

Unfortunately, personal care attendants face a high risk of developing injuries at work, due to the heavy and physical nature of their work, when providing care and support to elderly and unwell patients. Further, personal care attendants working in a community setting are at an increased risk of injury, often working alone and with inadequate support.

Common Injuries

Injuries commonly sustained by personal care attendants, nurses and other aged care workers include:

  • Soft tissue injuries from lifting and manual handling of patients and equipment;
  • Injuries due to undertaking heavy and repetitive work, with inadequate breaks or being under – staffed;
  • Slips and falls from working on wet or uneven surfaces in patient’s homes;
  • Physical and psychological injuries arising from occupational violence such as assaults, threats, harassment and intimidation.

What should I do if I am injured at work?

You should follow the below steps if you are injured at work:

  • Seek medical treatment immediately and arrange an appointment with your GP
  • Fill in a WorkCover Claim Form  as soon as practicable and report your injury to your employer within 30 days
  • Give your employer your WorkCover claim with an initial 14 day WorkCover Certificate of Capacity
  • Contact Fortitude Legal for a free initial appointment to learn more about your potential entitlements.

What can I claim?

If your WorkCover claim is accepted, you may be eligible for the following types of assistance:

  • Weekly payments of compensation for your lost wages;
  • Payment of reasonable medical expenses and like expenses (for example, GP consultations, medication, physiotherapy, counselling from a psychologist, home help and occupational rehabilitation);
  • No fault impairment benefit if you have sustained a permanent injury.

If you have sustained a serious injury because of your employer’s negligence, you may also be entitled to claim significant lump sum compensation (common law damages) for your pain and suffering and loss of earning capacity.

Strict time limits apply to WorkCover claims, so contact your local expert at Fortitude Legal to have a no obligation chat.

What is most important to the team at Fortitude Legal is to have clients who are happy with the conduct of their claim.  Clients who feel heard and respected and have trust in us to deliver the best results for them.  At Fortitude Legal we also aim to create a work environment that is both stimulating and fulfilling such that each member of our team loves to come to work each day and continue to fight the good fight.

We can’t deny however, that it’s pretty cool to be acknowledged by our peers for the work that we’re doing.  Fortitude Legal has recently been announced as a Finalist in the Law Institute of Victoria’s 15th Victorian Legal Awards in the category of Boutique Law Firm of the Year.  The Awards are dedicated to acknowledging the outstanding achievements of Victorian legal professionals.

Whilst every lawyer in our team has, over the years, either been a winner or finalist in the individual awards, there’s something really special about our entire team being acknowledged, as the work that we do every day is truly a team effort.  From opening mail and answering phones to the fabulous work done by our amazing and skilled support team, it is the care taken in each step of the process that allows us to deliver on our promises to our clients.

Thank you to the LIV for this acknowledgement and congratulations to the other firms that are finalists in this category.  We’re thrilled to be among you.

Why we must get it right the first time!

At Fortitude Legal, we understand that the time taken to prepare, pursue and present a Common Law claim can be frustrating.  We must ensure we have tracked down every important piece of evidence, every important witness, had all pertinent issues addressed and prepared our client’s case to the highest of standards.  We must also wait until our client’s injuries have stabilised, and the full extent of their loss is known, as far as is practicable.

The need for such thorough preparation is not only to ensure that we get the best result possible for each and every client, but also lies in the “ONCE AND FOR ALL” rule.  A Plaintiff not only carries the burden of proving their claim (‘the burden of proof’) but they only have one chance to do so.

As far back as the 1700’s it was held in England that an injured Plaintiff will have only one action at common law for their damages. So, a Plaintiff who had suffered injury caused by the negligence of another party who brought their claim and received damages for their loss, could not then seek to bring a further claim for damages arising out of the same negligent act or omission simply because at a later point in time their condition deteriorated or for example, came to surgery for those same injuries and had therefore endured greater loss and suffering.

This rule was transported to, and has always applied in Australia.

This rule in part explains why common law claims for damages can take at times years to prepare and pursue. Indeed, as lawyers representing injured people, our minds are never without this rule in our contemplation. That is not to say that some common law claims cannot be brought expeditiously if the evidence permits (more on this below), however maximising our client’s rights by ensuring that everything is in place prior to negotiating a settlement, is paramount.

Lump Sum Damages

It follows on from the operation of this “ONCE AND FOR ALL” rule that damages at common law are awarded as a lump sum.  Some criticism has been levelled at this method of providing for damages including the following:

  • There is an inherent difficulty, and in many respects an impossibility, in assessing future loss beyond the date of a settlement conference, a mediation or a trial; and
  • The lump sum is received now (and with certain discount factors applied to the lump sum to reflect the fact that the money is arguably worth more in the hand now, and various other factors) but the losses are not necessarily faced until a future point and the damages may be dissipated before then.

However, the need for finality and certainty for both sides (the injured Plaintiff and the negligent Defendant and its insurer) has been seen as a very powerful factor for retaining the lump sum nature of damages payments.

Telling YOUR Story

So, how do we as personal injuries lawyers assist our clients in establishing their future loss? Essentially, we tell YOUR story. This is done through a number of ways and is based on our gathering of, preparation of and presentation of the relevant evidence in our client’s case, including:

  • Taking very detailed and ongoing instructions from our client as to work history pre-injury, attempts to return to work post-injury, attempts to retrain, career aspirations/intentions and treatment plans;
  • Taking very detailed and ongoing instructions from our client as to the stability of their injuries (that is, have they completed the course of treatment recommended for their particular injuries and circumstances so we can assess the permanency of their present state?);
  • Obtaining all financial and other evidence to prove allegations in respect of future loss (although the past is not necessarily an indicator of what a person would have gone on to do in the future had the injury not occurred, it is a very relevant and powerful foundation);
  • Seeking detailed comments from treating medical teams by way of reports detailing future treatment needs, the prognosis and the likelihood of certain needs eventuating;
  • Seeking detailed comments from appropriately qualified independent expert witnesses (known as medico-legal doctors) by way of reports detailing future treatment needs, the prognosis and the likelihood of certain needs eventuating;
  • Always revisiting the totality of the evidence to ensure ‘the time is right’ for our client’s case to be formally presented and negotiations with the other side entered into.

On this last point, the lawyer acting in your best interests will not be afraid to regularly and diligently review the evidence in your case to see if you should be advised that your case should be brought now or deferred until a later point (within the parameters of limitation dates – time limits).

Our Duty To YOU

At Fortitude Legal, while we recognise the need to achieve a timely outcome (noting the ongoing pressures – financial and otherwise – clients suffer the longer a case takes), we aim to never compromise what is in our client’s best interests. Our first duty as lawyers is to the Court and the proper administration of justice and to our clients. There is a saying that justice delayed is justice denied. This is very true, however if a case is rushed, under-prepared and not ready to present, it is unlikely a Plaintiff will receive the best outcome possible.

It is important in managing a case that our clients understand why we do what we do and when it has to be done.  At Fortitude Legal, we pride ourselves on clear and constant communication with each and every client and our door is always open to answer any question no matter how big or small.

At Fortitude Legal – We’re In YOUR Corner!