The 2013 changes by the LNP to Queensland workers’ compensation legislation has severely impacted our ability to assist individuals injured during the course of their employment, through no fault of their own. These changes were uncalled for, unsupported by research and disrupted a system that was the best in Australia.For injuries sustained on or after 15 October 2013, injured workers assessed as having sustained a degree of permanent impairment (DPI) equal to or below 5% are now precluded from accessing common law damages. This even applies in circumstances where clear evidence exists that their employer’s negligence caused or continued to their injury. To give you an idea, an injury that represents a DPI of 5% could be:
- Strain/sprain of the neck or shoulders that causes a nurse to be unable to lift or move patients;
- A bulged or prolapsed disc in the low back that causes a process worker to be unable to undertake lifting of over 10kg; or
- An injury to the wrist or hand that causes a worker to be unable to perform tasks that require fine motor skills.
To put these changes in context, we asked one of our Lawyers, Shane Lawlor to provide an example of a case that would have had a very different outcome, had it been affected by the LNP’s demonstrative changes:
Gouldson Legal recently represented a client whom had sustained spinal injury as a result of repetitive and awkward lifting in the course of his employment in warehousing. Briefly, this 60 year old gentleman had immigrated to Australia from South-eastern Europe in the mid-2000s in an effort to seek refuse after war affected his country of origin. Although being a skilled draftsman and design professional, our client’s qualifications were not recognised in Australia and he was therefore required to engage in a labour-intensive occupation as a machine operator/stock manager.
Our client’s employment involved repetitive lifting of stock and often involving lifting over five-hundred 7kg packages per hour. He would often engage in this type of work for 8 hours per day, 6 days per week. Despite having no experience in a similar role, our client was never trained in safe lifting techniques, nor did his employer’s WHS manuals contemplate the awkward environment in which he worked, which prevented him from undertaking such techniques.
Unsurprisingly, our client started to experience symptoms of a back and neck injury in September 2012. Despite undertaking 12 months of intensive physiotherapy, his employment was ultimately terminated in September 2013, due to his inability to complete the core demands of his role.
WorkCover Queensland accepted our client’s claim for injury and he was later assessed as having sustained a DPI of 4.75%. He was offered a lump-sum statutory payment of approximately $14,000.00.
Had our client’s injury been sustained on or after 15 October 2013, he would have been unable to commence a claim against his employer for failing to prevent the injury that he suffered. Essentially, unless he was successful in challenging his DPI assessment, the compensation available to him would have been limited to that $14,000.00 lump sum. Thankfully, this was not the case.
Considering the extent of our client’s injuries, and the affect that these had on his day-to-day life, such a small amount of compensation placed him in a dire financial situation. Specifically, he and his wife had purchased a property shortly after immigrating to Australia and were yet to pay off approximately $130,000.00 of their mortgage. Post-injury, his mortgage repayments were actually more than his Centrelink disability benefits! Meaning had he been affected by the LNP’s changes, he and his wife would have faced losing their home. To us, this is unacceptable.
Due to the significant financial commitment of his mortgage, our client had at no time contemplated a reduction to his work duties and had actually planned to work well passed usual retirement age.
Fortunately, our client’s ability to claim common law damages was not affected by the LNP’s workers’ compensation amendments and he was therefore able to claim for his loss related to:
- Pain, suffering and loss of amenities of life;
- Loss of wages as a result of having been forced to take extended periods of leave from his employment since sustaining injury;
- Loss of potential future income due to his necessity to enter early retirement;
- Expenses that he incurred in seeking appropriate medical treatment, rehabilitation, and pain relief medication; and
- Expenses that he incurred as a result of his inability to undertake domestic duties and his need to engage commercial assistance.
As a result of his successful common law claim, our client received fair compensation for his life-altering injury and was able to significantly reduce the financial pressure on himself and his wife. He will be able to meet all of his future medical and pharmaceutical expenses and he has been able to retire without financial fears.
Unfortunately, not all workers injured during the course of their employment are as fortunate as this client. Therefore, it is critically important that all individuals whom sustain injury in the workplace seek urgent advice from a qualified expert that understands Queensland’s restrictive worker’s compensation laws.