The employees compensation case that modified me – Litigation, Mediation & Arbitration

Australia:

The accident at work that changed me

August 14, 2021

Carroll & O’Dea

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Scott Dougall is a partner at Carroll & O’Dea Lawyers specializing in personal injury. With over 20 years of experience, he is a recognized personal injury specialist, representing clients in all jurisdictions including the Personal Injury Commission, District & Supreme Courts and the Administrative Appeals Tribunal. Douglas tells FLOYD ALEXANDER HUNT about a successful lawsuit that has helped not only his client but potentially hundreds of other people.

The case was ruled by the appellate court at the end of January 2021. My client was injured in 2004 while working as a disabled worker. She was slapped in the face, resulting in tooth and neck injuries. The injury eventually required surgery in 2019.

Since she was not receiving maternity allowance at the time of the operation, her subsequent entitlement to these benefits was not fully attributed to the date of the injury. In fact, her weekly payment was time-frozen so she was living on a 2004 wage in 2021. This created significant financial difficulties for them and possibly hundreds, if not more, of other people within the workers ’compensation scheme.

The insurer’s approach was that indexing should only take place from the point in time when the Workers’ Injury Act was changed in 2013. That always seemed wrong to me.

The bottom line was that you currently had to receive weekly payments in order to be converted to a new wage rate within the system. For those who were not currently receiving payments, such as my client, there was uncertainty about when their payments would be indexed.

First and foremost, we have advanced this line of reasoning for the Workers’ Compensation Commission, and our line of reasoning has been unsuccessful. We then appealed, which was within the Workers’ Compensation Commission and which went to the presidential level. In this matter too we were unsuccessful. With IRO funds, we were then able to take this matter to the appeals court, where we were successful.

I think one of the points of interest about this decision is that it is relevant to potentially hundreds of people in the past whose payments were not indexed correctly. It is also relevant to people who may not have received weekly payments at the time the system was changed, but are later entitled due to a need for surgery or a deterioration in their condition. Your future payments should now be indexed historically up to the time of the first incapacity for work and no longer from 2013.

I have always been very committed to the rights of injured workers and in this particular case I could see my client’s very real financial plight. I really struggled to grasp how this concept, designed for utility, can have such unsatisfactory results that people live hand-to-mouth week after week.

My whole career has revolved around working for injured workers. I have had a number of matters that went before the appeals court and I was particularly pleased with this one as it has a fairly broad application and is beneficial not only to my client but also in general. It is cases like this that drive your passion to focus on doing what is best for your customers and trying in any way to change their lives.

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