In May 2020, our client was successful in being granted a serious injury certificate for pain and suffering and economic loss damages for bilateral shoulder injuries sustained in the course of his employment as a printer for a newspaper company.

The injury

Our client developed significant shoulder pain and a burning sensation in both shoulders while he was working. He attributed his shoulder injuries to the repetitive and overhead nature of his duties including manually changing over hundreds of printing plates over a 2-3 hour period. Each plate required him to apply a suction cup requiring him to forcefully pull backwards.

Serious Injury Application

We lodged a serious injury application on WorkSafe on behalf of our client seeking certification that our client’s injury to his shoulders was serious. This certificate was required in order for our client to commence a common law claim in negligence against his employer.

At first instance, WorkSafe denied our client’s application.

We issued legal proceedings seeking a serious injury determination from the Court.

In order to constitute a serious injury, the impairment must be to one body function. In some circumstances, it is permissible to aggregate the effects of injuries to two body functions arising from a single incident. Our client’s case was not one of those.

During the course of the litigation, Worksafe argued that our client cannot aggregate the impairment of his shoulders and each shoulder constitutes one body function which must be assessed separately for the purposes of satisfying the serious injury test.

The main authorities relied upon by the parties were Lexa v Transport Accident Commission and Tavendale v The Age Co Ltd. In Tavendale, the plaintiff injured his left knee in an accident. He later developed injury to his right knee due to favouring that knee as consequence of his initial left knee injury. The Plaintiff in that case was permitted to aggregate the impairment arising from the knees. In Lexa however, the plaintiff was involved in a motor vehicle accident and suffered various injuries including a bilateral shoulder injury. Aggregation of the shoulders was not permitted because the shoulder injuries were not claimed to be a product of the other.

Outcome

In our client’s case, the Judge confirmed that the shoulders could not be aggregated because there was no evidence that the injury to one shoulder contributed to the other. The Judge then examined each shoulder separately and concluded that each shoulder injury satisfies the serious injury test in its own right.

Our client was ultimately a serious injury certificate for pain and suffering and economic loss damages. More recently we resolved our client’s claim for damages to compensate him for his pain and suffering, loss of enjoyment of life and a portion for his lost income.

Contact our team of lawyers on (03) 9321 9988 to discuss your options if you have sustained an injury during the course of your employment.