The Accident
In 2019, a client of ROCHE Legal in their late 50’s was working as a disability support worker. The support worker was unfortunately injured at work when assisting an elderly resident in a well-known disability support and aged care facility take a shower. Specifically, the injury occurred when the support worker slipped in the shower causing the worker to lose balance and twist their knee.
The shower at the care facility had a well known history of clogging up due to bad drainage, causing it to overflow and water to drain away very slowly. Compounding the problem, the floor tiles of the shower at the care facility were slippery which made showering quite a dangerous daily activity for both the residents and the support workers.
At the time of the accident, the elderly resident was mid-way through a shower unassisted. At this particular care facility, residents were restricted from showering unassisted due to the danger it presented to them. Accordingly, the support worker (who was occupied assisting multiple other residents in various ways at the time) heard the shower being turned on by the resident and immediately came to assist. When the worker arrived, the shower’s poor drainage had (as usual) caused a significant pooling of water on the shower floor that was not draining away.
The worker stepped in to turn the water off, but in doing so, slipped on the pooled water. The worker didn’t fall to the ground, but twisted their knee when attempting to regain balance. The worker felt immediate knee pain which began to increase over the rest of the worker’s shift.
The Knee Injury
Leaving work and arriving at the doctors office, a MRI scan was taken which indicated that the support worker had torn the meniscus of the knee and would require surgery (a debridement and meniscectomy). To minimise out-of-pocket expenses and maintain an income for the time away from work required for rehabilitation, the worker applied for workers compensation which is available to all Queenslanders who sustain an injury at work. Through Workcover Queensland, all medical expenses (mostly surgery and intense physiotherapy) were funded and weekly compensation benefits were paid to the worker.
However, due to the support worker’s age, the meniscus surgery caused an exacerbation to underlying osteoarthritis present in the same knee. Accordingly, a full recovery wasn’t possible and the worker was unable to return to work in her same capacity (or at all in any other role).
Compensation Offered from Workcover
As part of the workers compensation claim, Workcover arranged for an independent permanent impairment assessment which determined that the knee injury caused the worker a 2% whole person impairment. Accordingly, at the conclusion of the Workcover claim, the worker was offered less than $7,000 in lump sum compensation (on top of the weekly benefits already paid) due to the permanent nature of the injury.
The support worker engaged Roche Legal to help decide whether the lump sum offer from Workcover was reasonable and should be accepted, or whether a common law claim for negligence should be made instead, seeking vastly greater damages on the basis of negligence of the employer.
Due to the clear fault of the worker’s employer by not properly maintaining the showers so that they drained properly (or at the very least – installing a cheap rubber mat in the shower which was known to overflow) Roche Legal assisted the support worker to obtain new medical evidence and make a successful common law claim against the employer. The employer admitted that they were negligent in the circumstances, and would pay a larger amount than the original lump sum offer. A confidential out-of-court settlement was negotiated to the worker’s satisfaction.
TPD Insurance Pay Out
On top of the support worker’s successful common law claim, an additional claim for the worker’s knee injury was able to be made through total and permanent disability (TPD) insurance contained in the worker’s superannuation policy. For this additional claim to be successful, the worker had to prove that her knee injury caused an incapacity to such an extent to render them ‘unable to ever again be gainfully employed in [their] usual occupation and any other occupation for which she is suited by training, education, or experience’.
Because Roche Legal had already obtained additional highly relevant medical evidence from an expert knee surgeon for the worker during the common law claim process, proving the extent of the worker’s disability to meet the definition was easy.
In submissions to the TPD insurer, Roche Legal highlighted very specific and important comments made by an expert surgeon with respect to the worker’s knee injury. The surgeon said that the worker was now ‘unable to perform an occupation that involves time on her feet and any manual handling. As [the worker] is qualified for disability work only, a return to work seems unlikely…’. Another independent specialist surgeon in a report relating to the worker’s common law claim also said ‘…I accept that [the worker] should avoid standing and walking whenever possible…’. The commentary from the knee surgeons was clearly indicative that the worker no longer had the ability to continue to work in the occupation she was trained and therefore met this particular insurer’s definition of totally and permanently disabled.
Remember – not all definitions for total and permanent disablement are the same.
In approximately 6 months from lodgement, the full TPD insurance and superannuation benefit sum of over $150,000 was paid out to the injured worker.
Source: Mondaq
