Pre-existing injury or a workers compensation claim

Pre-existing injury or a workers compensation claim?

Think about this situation, you already have a bad [insert injury here] I’m going to use knee for this example, from teenage sporting activities with a number of flare ups in the past. Life happens and unfortunately our bodies don’t always keep up with our ambitions. You may have even had a surgical repair or two, but you have always been able to go to work and do your job properly even with the bad knee. Then the unthinkable happens, its usually something simple, crouching down then twisting as you stand up, or bending down to pick something up off the floor, and the knee locks up causing significant pain and you are not able to continue working. It gets worse, because more often than not, an incident like this is the final straw for that last little tendon holding the knee together and significant reconstruction surgery is now required. The final snap occurred at work, but can you make a workers compensation claim in a case like this?

Something like this happened to someone I know recently, and his first thought was that there was no way he could make a workers compensation claim with the significant medical history he had, which included several previous surgeries to this knee. But I encouraged him to make a claim anyway, because the reality is, if he had not gone to work that day, he would not have suffered that further injury and it really was the final “snap” so surgery was the only viable solution. The good news is that in this case, the treating doctors agreed that the need for further surgery resulted directly from the incident at work, rather than the underlying pre-existing damage to the knee, and the claim was accepted by the employer’s workers compensation insurer. As a result, this person’s knee repair surgery was paid for by the insurer and he was also able to claim weekly benefits for the period he was not able to work during his recovery. The employer was not out of pocket for payment of sick leave entitlements and was able to hire casual staff to cover the position. This person may never be able to return to his pre-injury heavy manual work, but the insurer should also assist with rehabilitation and retraining into a lighter duties role which means he will still be able to work and support his family without having to rely on our social security scheme. If this person had not made the claim, or it was not accepted, and he didn’t have private health insurance, more than likely he would be waiting for 12 months or more on a public waiting list for knee surgery and would have been unable to work due to his injury in the meantime causing significant financial hardship for his whole family.

Unfortunately, as a solicitor who has been practising for over 11 years in the workers compensation field, and a Law Society Accredited in Personal Injury, I see too many cases like this where people do not make claims when they are legitimately injured at work because they are concerned that an injury is complicated by a pre-existing condition. Or people who decide not to dispute a decision made by an insurer to not accept a claim for the same reason.  Not everyone has a friend like me that they can just call and ask for advice about it, but I want to make everyone aware that injured workers in NSW, whether they have made a claim yet or not, are able to access legal advice at no cost, because solicitors like me are able to apply for a funding grant through the Independent Review Office (‘IRO’) to cover their legal costs. There are a lot of things I disagree with in relation to our workers compensation scheme, but this is something that has been done right and gives injured workers the benefit of being able to obtain legal advice at an early stage without the additional financial hardship of legal fees. The grants can also be used to obtain medical evidence to confirm whether or not the incident at work is the substantial contributing factor to an aggravation of a pre-existing condition, which is specifically provided for in the relevant legislation. I can assure you that many workers compensation claims are made and accepted on this basis.

If you would like any advice or assistance in relation to an injury sustained at work, whether you are considering making a claim, want advice in relation to an existing claim and the benefits available, or need assistance disputing a determination made by an insurer, I would be happy to assist and can apply for a funding grant from IRO on your behalf. KC Hilton, WNB Legal.