Lifting Injury Compensation
Lifting and manual handling are by far the largest cause of workplace injuries in Australia each year. Around 17% of serious workplace incidents involve lifting, as the mechanism of injury. If a load is too heavy, too large, difficult to grasp, unstable or difficult to reach, it can place excessive strain on back muscles which are most frequently injured.
COMMON LIFTING INJURIES
- Strains and sprains: tears in muscles, tendons, and ligaments;
- Soft tissue injuries: damage to nerves, ligaments, and tendons in arms, shoulders, neck or legs;
- Herniated or bulging disc: the soft center of a spinal disc rupture due to damage;
- Abdominal hernias: where internal tissue protrudes through a weakness in the abdominal wall;
- Repetitive strain injury: injuries caused by wear and tear, overuse and repetitive motions;
- Chronic pain: long term residual pain resulting from serious musculoskeletal injuries.
PROFESSIONS AT RISK OF MANUAL HANDLING AND LIFTING INJURIES
Professions at risk of sustaining injuries from manual handling include; carpenters, builders, concrete layers, bricklayers, nursing home workers, ambulance officers, warehouse workers, landscapers, cleaners, assembly line workers and other tradespeople doing physical labor.
Manual handling injury – can I claim compensation?
You may be able to claim compensation for an injury you sustained from lifting or manual handling if it was because of someone else’s negligence or carelessness, or if it developed over a period of time during the course of your employment. Negligence may arise in a variety of settings.
Lifting injury at work – can I claim compensation?
If you have suffered an injury while lifting at work, you may be able to claim workers compensation from your employer. Employers must provide proper and adequate means for employees to carry out their work. This includes:
- providing safe systems of work;
- maintaining safe machinery and equipment;
- maintaining a safe workplace; and
- providing employees with adequate facilities, training, supervision, and instruction.
If you were injured because your employer neglected to provide safe systems of work, equipment or a safe environment, you may be able to sue for personal injury compensation. This includes injuries incurred over a long period of time, late-onset injuries, and aggravations of pre-existing injuries.
Examples: Jeff’s employer requires him to lift 40kg bags of cement up onto pallets without any mechanical lifting device or assistance. Over a period of time, this causes Jeff to sustain a severe back strain and a prolapsed disc. Jeff can probably claim compensation from his employer for his injury, as the system of work his employer-provided was unsafe.
Rick is a warehouse worker. His employer has trained him on how to safely lift loads and issued him with a safety harness belt to prevent injury. Rick refused to wear the safety belt as it was uncomfortable and as a result, he sustained a herniated disc injury. Rick may not be able to claim compensation for his injuries as they were due to his own negligence. However, he could apply for Workers Compensation payments while he is off work.
POTENTIAL LONG TERM IMPACTS OF LIFTING INJURIES
Strains and other soft tissue injuries generally resolve themselvs within a few weeks or months, however, in severe cases they may take longer. This may lead to reduced physical activity, weight gain, loss of bone density, muscle strength and flexibility.
For serious back injuries, recovery is generally between one and six months. Therapy may be required to strengthen spinal muscles and in some cases, surgery may be needed to remove or repair a damaged disc. Long term complications can include loss of agility, strength or sensation in the inner thigh, back of the leg and around the rectum. In some cases, ongoing pain can lead to chronic pain syndrome, depression, and anxiety.
I HAVE A LIFTING INJURY – WHAT CAN I CLAIM FOR?
General damages compensate you for the pain and suffering you have experienced as well as any permanent loss of enjoyment of life that results from your injury. They are calculated by reference to the ISV Scale which rates the seriousness of any injury between 1 and 100 and accords a monetary value range to that rating.
For example an extreme lumbar spine injury resulting in gross limitation of movement has a rating of 36 to 60 corresponding to a monetary range of $81,560 to $169,700 whereas a minor lumbar spine injury such as a muscular strain may attract an ISV of between 0 to 4 and a monetary range of $0 to $5,560.
To diagnose and treat your injuries you may need to consult your general practitioner, visit a specialist, obtain x-rays or MRIs, take pain medications and wear special medical apparatus. The expenses you incur to obtain medical treatment including costs of consultations, diagnostic scans, travel costs, medication, and medical equipment may be claimed as compensation. You can also claim for medical costs you will incur in the future as a result of your injury.
Hospital and surgical costs
Surgery may be required to treat your injury. Surgical and hospital costs paid by you can be claimed as compensation as long as the surgery was necessary to treat your condition.
Rehabilitating after a lifting injury may involve physiotherapy, chiropractic treatments, acupuncture, home, and vehicle modifications and ergonomic aids. Your reasonable costs of rehabilitation can be claimed back as compensation.
Loss of income and future earning capacity
If you suffer an injury you may need time off work for several weeks or months immediately after the incident. You can claim compensation for this lost income.
If your injury prevents you from working to the same extent as you did prior to the injury, you may also be able to claim a loss of future income earning capacity. Occupations that require manual labor, repeated bending and twisting, or sitting for long periods may be difficult or impossible for someone who has suffered a prior injury and their capacity to earn income in the future may be reduced. This is usually estimated as a lump sum figure based on the age of the person, their usual occupation and other skills.
Compensation can be claimed for superannuation that would have been paid on lost income.
Care and assistance
A severe injury may prevent you from being able to perform tasks such as personal care, cleaning, laundry, mowing your lawns, caring for the garden or other domestic chores. If you formerly performed these duties but are now unable to due to an injury you can claim compensation for care and assistance provided to you by friends, relatives or paid contractors.
Interest can generally be claimed on compensation for any out of pocket expenses that are incurred before your claim is resolved.
HOW WILL MY COMPENSATION BE CALCULATED?
In general terms, the amount of compensation is gauged by comparing what your life was like before the injury and what it is like now, as a result of the injury.
Someone whose injury has had a greater impact on their life will be entitled to more compensation than someone whose injury has had only minimal impact.
The amount of compensation payable for a lifting injury will vary greatly from case to case, depending on a variety of variables such as:
- the severity of the injury: more severe injuries will attract more compensation;
- the age of the patient: young people are likely to receive greater compensation than older people for a similar injury as it will impact their lifestyle and employment for a longer period of time;
- level of health prior to the incident: an active and healthy person may suffer more from an injury because they are unable to exercise the way they did prior to the accident and may become predisposed to mood disorders and other health conditions they may not have suffered were it not for their injury;
- pre-incident lifestyle: injured claimants who formerly engaged in activities they can no longer participate in may experience greater an impact from their injuries;
- occupation: greater compensation will be payable where a person’s ability to work in their former occupation is impacted severely by their injuries, for example, a laborer will suffer a greater loss as a result of a lifting injury than a person who works part-time in an office and will, therefore, receive greater compensation for their injury.
WHAT TIME LIMITS APPLY TO MY CLAIM?
For most personal injury claims, legal action must be commenced within three years of the date of the injury. If you miss this deadline, your claim will be statute barred and you will lose all rights to claim compensation.
However, depending on where your injury occurred and who you are suing, specific pre-court procedures may apply. Pre-court procedures specify other time limits which are much sooner. If you miss these time limits you may lose your rights to claim unless you can convince the court that you have a good reason for delaying and why you should be allowed to claim.
The time limits specified by some pre-court procedures are set out below.
- If your injuries were sustained at work, you must request an assessment of permanent impairment from the workers’ compensation insurer within 2.5 years of the injury.
- If your injuries were sustained in a motor vehicle accident: Pre-court procedures require you to serve an official Notice of Claim on the party you believe to be at fault within nine months of the injury or within one month of your consultation with a solicitor in relation to your claim, whichever occurs first.
- If your injuries are the subject of a public liability claim: If you are making a claim for personal injuries against an occupier, property owner or public authority, pre-court procedures require you to serve an official Notice of Claim on the party you believe to be at fault within nine months of the injury, or within one month of your consultation with a lawyer in relation to your claim, whichever is first.
If you are under 18 years of age
For minors, the obligation to serve the other party with a Notice of Claim begins when the child turns 18, however a parent or guardian may do this on behalf of the minor before they turn 18.
WHAT TO DO IF YOU HAVE SUFFERED A LIFTING INJURY
Depending on the nature of your injury and the circumstances which caused it, compensation may or may not be available. You should always seek expert legal help to see if you are able to make a claim.