Back Injury In 1988 Leads To Common Law Damages In 2011

Back Injury In 1988 Leads To Common Law Damages In 2011

A client of Redlich's Work Injury Lawyers was granted a Serious Injury Certificate this morning in the County Court, for a back injury she sustained 23 years ago while working at the defendant's shoe factory.

Our client injured her back at work when bending down and reaching to grab leather uppers from a crate. She immediately experienced sharp pain in her back. Despite the back pain, our client continued to work on light duties, before having to cease work later that year due to the severity of her symptoms. Upon ceasing work in 1988, our client lodged a Workcover claim which was accepted by the defendant.

Our client required 3 months off work, before attempting to return to the defendant's shoe factory, starting on a few hours a day and gradually increasing her hours to full time. During this time she continued to experience lower back pain, and began experiencing pins and needles with numbness into her right leg. Our client subsequently underwent spinal fusion surgery performed in October 1989, with this surgery being paid for by Workcover.

Within six weeks of undergoing the spinal fusion surgery, our client made a successful recovery, and she returned to school to complete her VCE. Following the completion of her studies, she then undertook a number of jobs in the retail and hospitality industries, before working full time as a nanny, caring for two young children.

Between 1997 and 2001, our client had three children, and although she experienced some back pain during the final months of each pregnancy, the pain resolved after each birth.

Our client returned to part- time work in 2006, and in mid 2007, she began to experience worsened back pain, with symptoms across the right side of her lower back extending down her right thigh. Despite rest and medication, her symptoms gradually worsened, and a CT scan performed in early 2008 showed that the original fusion was unstable.

Our client underwent further spinal fusion surgery in 2009, with Workcover accepting liability for the performed surgery and reinstating her weekly payments. She subsequently underwent a third back surgery in 2010 which involved a cage being internally fitted to her spine.

Although a serious injury certificate was denied by the defendant, it was conceded by the defendant that our client had a whole person impairment of 30% or greater in respect to her back injury, therefore having a serious injury within the meaning of Section 135A(3) of the Act. The issue in dispute however, was whether our client had the requisite knowledge as to the serious injury consequences, for more than 3 years prior to her making the claim against the defendant.

A County Court Judge was not satisfied that our client had the requisite knowledge of the serious consequences of her back injury, more than 3 years prior to making her claim. The Judge was of the opinion that our client only became aware of the serious consequences in 2008, upon receiving medical advice that the original spinal fusion was unstable, and that she would require a second spinal fusion surgery. A Serious Injury Certificate for both pain and suffering damages and loss of earnings was granted, enabling our client to now make a claim for common law damages.

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