There are thousands of Australians who have been affected by pre-existing injuries or chronic conditions that they suffered in a car accident, on the sports field or from birth. Having a pre-existing injury or condition can seriously affect not only their enjoyment of life but also their ability to make a living. If you are one of those working with pre-existing injuries or conditions, you might be wondering how this will affect a workers compensation claim, should you need to make one.
In cases where a person is injured at work, they are normally eligible to make a compensation claim. A workers compensation claim will generally cover an injured worker’s lost wages during the period of their incapacity and required medical treatment and rehabilitation until they are able to return to work. In some cases, if the injury has resulted in permanent impairment (at least 11% WPI or more for physical injuries and 15% WPI or more for psychological injuries), they are also entitled to payments of lump sum compensation for the permanent impairment.
But what happens if a worker aggravates a pre-existing injury or condition while they are at work? For example, Michael had an old knee injury that he sustained many years ago while playing football. His knee conditions suddenly flare up when he is performing a heavy lifting task in the course of his employment as a storeman which makes him unable to work. Can Michael still be able to make a workers compensation claim?
The short answer is “yes”. A worker is still entitled to make a workers compensation claim if they have pre-existing injuries or conditions that have been aggravated, accelerated, exacerbated or deteriorated AND their work was a “significant contributing factor” to the aggravation, acceleration, exacerbation of deterioration of the pre-existing injuries or conditions. Even if the original injury was not work-related, if it has got worse by something that happened at work, then a worker might still be able to claim workers’ compensation benefits. This could include the general benefits of weekly payments for loss of income, medical treatment and also a lump sum payment for permanent impairment.
In lump sum compensation claims for permanent impairment relating to an aggravation of an injury, the effects of the pre-existing injury and the aggravation of symptoms are required to be separated. To be eligible for such a claim, the permanent impairment resulted from the aggravation alone needs to be serious enough to reach the threshold of 11% WPI (for physical injuries and 15% WPI for psychological injuries).
When assessing the degree of permanent impairment, the medical assessor is required to discount for the pre-existing injuries or conditions. There is to be a deduction for any proportion of the impairment which is due to any previous injury or condition. If the deduction is difficult or too costly to decide, then it may be assumed that a deduction of 10% should apply, unless there is medical evidence to the contrary.
For instance, Stacey injured her back while working as a registered nurse in a hospital and claimed a lump sum compensation for permanent impairment in 2011, the degree of which was assessed at 11% WPI.
Stacey left the workplace and obtained a new employment with a residential aged care facility as a care worker. However, employment with the aged care facility resulted in a further injury to her back and as a result, she ended up undergoing a further surgery in the form of fusion in 2019. She subsequently made a permanent impairment lump sum claim for that injury.
In the assessment of WPI, the medical assessor determined that Stacey had 27% WPI in total as a result of the back injury attributable to employment with the aged care facility and deducted 11% WPI in relation to the previous back injury suffered by the worker. That reduced her assessment of impairment to 16% WPI, which was above the threshold to claim permanent impairment compensation for the second back injury.
Sustaining an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury can understandably cause confusion for injured workers. It is not always clear-cut to move forward with such claims. It also happens that a claim is quickly knocked back by an insurer, simply labelling the injury as “old”, “degenerative” or “pre-existing”.
The best way to navigate this sometimes complicated situation is to obtain a professional advice from a workers compensation lawyer who can investigate the circumstances surrounding your claim and provide you with options going forward.
All workers compensation claims are conducted with a grant of funding from IRO which means there are no legal costs for you to pay. Should you have any questions about whether you are eligible to make a worker-injury claim, please do not hesitate to contact our legal team at Alliance Compensation and Litigation Lawyers.
