No Win No Fee Personal Injury Lawyers explain the impact of Trumino v Coles on work injury claims. Gold Coast & Brisbane No Win No Fee Lawyers.
Good News for those Injured at Work During 15 October 2013 & 30 January 2015
If you’ve been injured at work during the period 15 October 2013 and 30 January 2015, then your work injury claim is subject to the 5% threshold. What this means is that you cannot bring a Common Law claim for your work injury unless you achieve a degree of permanent impairment(DPI) for your injury of over 5%.
No Win No Fee Personal Injury Lawyers Explain the Degree of Permanent Impairment (DPI)
What is a degree of permanent impairment or DPI ? Taking your body as 100% functioning, permanent impairment is basically the impairment or loss of function suffered because of an injury. So for example, doctors may assess you as suffering a 7% loss of bodily function because of your work injury – then your DPI is 7%.
How doctors assess permanent impairment of functioning caused by an injury is based on a special guide used to assess DPI for work injuries in Queensland, namely, GEPI (Guide to Evaluation of Permanent Impairment). And GEPI is primarily based on the international guide for assessing permanent impairment of functioning caused by injury, the AMA Guides.
No Win No Fee Personal Injury Lawyers Explain Common Law Claims
For those asking what a Common Law claim is – there are 2 types of claims that may be available to you if you’re injured in the course of your work. The first is a workers’ compensation claim, where you’re entitled to claim payment for your medical expenses and lost wages whilst unable to work due to your work injury. The second is a Common Law claim. This is where you sue the employer for causing your work injury, although the workers’ compensation insurer is still the insurer that meets payment of your Common Law claim.
In a Common Law claim you can claim for all losses, both past & future, relating to your work injury. It is only through a Common Law claim you will receive proper compensation for your work injury. However, not everyone injured in their work has a right to bring a Common Law claim. Only those who have been injured because of the wrongful or negligent actions, or inaction of their employer or a co-worker, have entitlement to a Common Law claim.
For example, say a worker tasked with aiding cooks in a restaurant kitchen slips on the kitchen floor whilst undertaking his work duties and as a consequence, suffers a back injury. When the worker is asked about the circumstances surrounding his slip and fall, he tells us that during busy Friday and Saturday nights, the restaurant was always seriously understaffed. As a result, he was required to rush frantically about the kitchen to get his work done. He also tells us that the floor surface in the area surrounding the bin and dishwasher in the kitchen where workers would throw waste from dirty plates and crockery and stock the dishwasher, was always covered in foodstuffs and waste, including greasy potato fries, making the floor surface very greasy and slippery. This would result in foodstuffs and grease adhering to the shoes of the workers in the kitchen area, making it very slippery whilst undertaking their work. The worker said that he had felt something underfoot at the time he slipped and fell.
No Win No Fee Personal Injury Lawyers Explain Negligence of the Employer
In the above example, the employer of the worker was negligent. The employer should have had a proper and safe system of work in place whereby foodstuffs and waste were not covering the floor surrounding the bin and dishwasher in the kitchen, causing a slip hazard for kitchen workers. Further, the employer should have had more staff engaged during busy periods, so workers weren’t required to rush about, placing themselves at risk of slipping or tripping, to get their work done. It would also have given more time for those workers dumping waste and stocking the dishwasher to take more care in avoiding dropping foodstuffs and waste all over the kitchen floor, and to clean up any spillages. And the employer is also vicariously liable for the negligence of its workers who negligently dropped foodstuff and waste onto the kitchen floor and failed to clean up the spillage, placing other workers at risk of slipping and suffering injury.
The worker in the above example, would have a right to bring a Common Law claim for his work injury, and seek compensation for all the loss and damage sustained as a consequence, because his work injury was the result of his employer’s negligence.
No Win No Fee Personal Injury Lawyers Explain Impact of Recent Decision in Trumino v Coles
As indicated above, if your work injury occurred between 13 October 2013 and 30 January 2015, to be able to bring a Common Law claim seeking damages for your work injury, you must achieve a DPI of more than 5%. This means you need to achieve a 6% DPI or more to be entitled to pursue Common Law damages for your work injury.
Now legislation governing work injury claims in Queensland, also provides that when considering whether a worker has achieved a 6% DPI or more, physical injuries from a work event, cannot be added to any psychiatric injury from the same event. DPIs for physical and psychiatric injuries from the same work event, are therefore to be treated separately. This therefore gave workers’ compensation insurers the opportunity to refuse to entertain all injuries from a work event, where a worker doesn’t achieve a DPI over 5% for both their physical and psychiatric injuries sustained in the same event.
In the case of Trumino v Coles (2017) QSC 211, Mr Trumino was a shop filler working in Cairns. Whilst undertaking his work, he allegedly slipped on frozen water on the floor of the shopping centre, causing him back injury. The back injury was severe, resulting in bladder and erectile dysfunction. Doctors assessed his physical injuries at a 35% DPI. However, Mr Trumino had also developed a psychiatric injury as a result of the severe back injury sustained in his work. His psychiatric injury was assessed at a DPI of only 1%. Mr Trumino brought a Common Law claim for all his injuries sustained in the slip and fall at work.
Coles, the self-insured workers’ compensation insurer, rejected Mr Trumino’s Common Law claim for his psychiatric injury on the basis that it had not met the 5% threshold required for bringing a Common Law claim. Coles basically claimed that Mr Trumino could only bring a Common Law claim for his physical injuries. In response, Mr Trumino made an Application to the Supreme Court at Cairns for a Declaration that he was entitled to pursue Common Law damages for all his injuries sustained in the slip and fall work event, because he had met the 5% threshold with his DPI assessment of 35% for his physical injuries.
Justice Henry who decided the matter, disagreed with Coles and found for the worker, Mr Trumino. He determined that Mr Trumino had reached the 5% threshold required with the 35% DPI assessment for his physical injuries from the slip and fall at work, and he could therefore claim for all his injuries from the event, both physical and psychiatric, at Common Law.
No Win No Fee Personal Injury Lawyers are Experts in Work Injury & Workplace Accident Claims
No Win No Fee Personal Injury Lawyers are experts in workplace and work injury claims. In fact, our Principal has previously worked for, acted on behalf of and been trained in work injury claims by Queensland’s major workers’ compensation insurer.
If you’ve sustained an injury in the course of your work and wish to know what your entitlements are to compensation and damages, you can contact us by way of FREE calling 1300 388 383, Chatting with us online, or sending us your enquiry via one of our forms on our website. You can request a FREE callback or consultation, or a FREE instant appraisal of your case. And a Senior Lawyer is available to take your enquiry 24 hours a day, 7 days a week.
ALL enquiries are totally FREE of any charge, totally confidential and without any obligation.
No Win No Fee Personal Injury Lawyers Warn About Time Limits on Bringing Workers’ Compensation & Common Law Claims for Damages
If you wish to bring a workers’ compensation claim, you must do so within 6 months of sustaining your work injury, or becoming aware of it. If you miss this time period, you can seek waiver from the workers’ compensation insurer, but you need to have a very good reason for the delay and waivers are not readily agreed to.
You should also be aware that if you don’t bring a workers’ compensation claim, you will have no right to any lump sum statutory compensation, even where you are found to have sustained a degree of permanent impairment. So if your work injury claim is subject to the 5% threshold, and you don’t achieve 5% DPI, then you will have no right to any compensation for your work injury at all. If you do achieve the 5% threshold, or your work injury is not subject to the 5% threshold rule, you will still have a right to bring a Common Law claim for damages, but only where there has been some wrongful act or negligence on the part of your employer or a co-worker.
In respect to Common Law claims for damages for work injury, you need to ensure you bring your claim within 3 years of sustaining your injury, or the breach by the employer that caused your injury to occur. This time limit is very strict and cannot be easily overcome. If it is missed you must have a very good reason for your delay, and it can only be extended by Order of a Court.