Tag: #workers compensation

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’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.

 

 

 

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.