The elbow is one of the largest and most regularly used joints in the human body. It is the meeting point for several main bones and muscles, and provides the arm with increased versatility, durability and structure.
Being a major joint in one of the most active regions of the body the elbow can easily be put under stress, placing it at risk for injury or trauma. Since it is limited to unidirectional movement of 180 degrees, it can easily be damaged as a result of twisting or hyperextension.
The elbow joint can be injured in a variety of ways:
Elbow injuries may result from a variety of causes including trauma, impacts, falls, prolonged stress or degenerative conditions.
Traumatic injuries to the elbow may occur in any workplace as a result of an accident such as a slip, trip or fall. Professions that perform a lot of repetitive activities like grasping and lifting are especially at risk of overuse injuries in the elbow. Computer workers, assembly line workers, packagers, piece workers, meat cutters, check-out staff, baristas, hairdressers, brick layers, carpenters, musicians and some athletes are particularly at risk for such injuries.
You may be able to claim compensation for an elbow injury if it resulted from someone else’s negligence or carelessness.
Negligence may arise in a variety of settings:
If you are injured at work, you may be able to claim compensation from your employer. Employers must provide proper and adequate means for employees to carry out their work. This includes:
If you are injured because your employer neglects to provide safe systems of work, equipment or a safe environment, you may be able to sue for personal injury compensation. This includes injuries incurred over a long period of time, late onset injuries, and aggravations of pre-existing injuries.
Examples: Jeff develops tennis elbow from continuous packing work on an assembly line for long periods, which requires him to perform repetitive motions with his right arm. Jeff has complained about his elbow getting sore but his employer refuses to allow frequent breaks, allow more time between shifts, rotate his duties or setup his work area in a more ergonomic way. Jeff may be able to claim compensation from his employer for his elbow injuries.
Rick falls and fractures his elbow at work while riding through the warehouse on a pallet trolley. Riding on the trolleys is against his employer’s safety policy. Rick cannot claim compensation for his injuries as they were due to his own negligence. However, he may be able to apply for Workers Compensation payments while he is off work.
See also: WorkCover Claims
If you sustain an elbow injury due to a car accident and the collision was totally or partially due to the fault of another driver or vehicle owner you can claim car accident injury compensation from the owner of the vehicle that caused the accident through their Compulsory Third Party insurer.
Examples: Jeff crashes his motorcycle and sustains a severe elbow fracture and dislocation when a speeding vehicle collides with him. Jeff can claim compensation from the owner of the speeding car through its CTP insurer.
Rick sustains a serious elbow injury when he runs a red light on his motorcycle and T-bones another vehicle. Rick is unable to claim CTP compensation for his injuries because the accident was totally his fault (although exceptions may apply for catastrophic accidents). If the accident occurred after July 1, 2016 he may be able to seek necessary and reasonable medical and rehabilitation services through the National Injury Insurance Scheme of Queensland (NIISQ).
See Also: What does CTP Insurance Cover?
Occupiers (including owners of private property and public authorities), have a duty of care toward people coming onto their land. They must take reasonable care to make sure entrants are not exposed to risks that are likely to cause injury. This means if there is something that is potentially dangerous on their property they must rectify it or warn people of the danger.
Common scenarios include someone slipping on a floor surface, tripping over an unexpected obstacle on the ground, falling into an unmarked hole in the pavement, or being hit by falling debris from a building site.
Examples: Jeff fractures his left elbow when he slips over on a grape that has dropped off the display in a supermarket. The supermarket has no system for identifying and cleaning up spills. Jeff is able to claim compensation for his injuries from the supermarket.
Rachel is skateboarding through a shopping centre car park when her skateboard slips out from under her feet and she falls backward. As she falls she places her left hand out behind her, hyperextending and fracturing her elbow. Rachel is unable to claim compensation since her injury did not result from any negligence on the part of the shopping centre.
By participating in contact sports you accept an inherent risk of injury. However if you are injured because of someone else’s negligent act, inadequate supervision, unexpected violence or unsafe facilities, you may be able to claim for compensation.
If you play sport for a club, at school or university you may be able to claim compensation under their insurance policy. If you have been injured because of unsafe sporting facilities or equipment you may be able to claim against the occupier or organiser of the event.
Examples: While playing a competitive game of football at university Jeff trips on a sprinkler head which is protruding from the playing surface, falling on his elbow and fracturing it. The groundskeeper and coach knew of the hazard posed by the sprinkler but allowed the players to train on it and had failed to warn them about the risk. Jeff may be able to claim compensation from the university.
Rod develops golfer’s elbow as a result of playing golf daily for about nine months. Rod has no recourse for compensation against the golf club he plays at, as his condition was not caused by any negligence on their part.
An overuse injury to the elbow may continue to cause persistent symptoms years after the initial injury and may eventually lead to chronic pain syndrome. Dislocations and injured ligaments often lead to reduced or abnormal elbow motion and function and in some cases, arthritis, pain and chronic stiffness.
A bone that has been fractured may cause ongoing aches, stiffness and pain with activity for several years after the initial injury. In some cases, ongoing pain and discomfort may affect a person’s mood and impair sleep.
General damages compensate you for the pain and suffering you have experienced as well as any permanent loss of enjoyment of life as a result of an elbow injury. They are calculated by reference to the ISV Scale which rates the seriousness of any injury between 1 and 100 and accords a monetary value range to that rating.
For example a severe elbow fracture or dislocation with secondary complications has a rating of 26 to 50 and a monetary range of $51,660 to $131,200 whereas a minor elbow injury causing no permanent damage is rated 0 to 5 with a monetary range of $0 to $6,950.
To diagnose and treat an elbow injury you may ned to consult your general practitioner, consult a specialist, obtain x-rays or MRIs, take pain medications and wear special medical braces or apparatus. The expenses you incur to obtain medical treatment including costs of consultations, diagnostic scans, travel costs, medication and medical equipment may be claimed as compensation. You can also claim for medical costs you will incur in the future as a result of your injury.
Elbow injuries may require surgery to repair, reconstruct or replace components of the joint. Surgical and hospital costs paid by you can be claimed as compensation as long as the surgery was necessary to treat your condition.
Rehabilitating after an elbow injury may involve physiotherapy, acupuncture, massage, home and vehicle modifications and ergonomic aids. Your reasonable costs of rehabilitation can be claimed as compensation.
If you injure your elbow you may need time off work for several weeks or months immediately after the incident. You can claim compensation for this lost income.
If your injury prevents you from working in the future to the same extent as you did prior to the injury you may also be able to claim loss of future income earning capacity. Occupations that require manual labour, heavy lifting, or repetitive hand movements may be difficult for someone who has suffered an elbow injury and their capacity to earn income in the future may be reduced. This is usually estimated as a lump sum figure based on the age of the person, their usual occupation and other skills.
Compensation can be claimed for superannuation that would have been paid on lost income.
Serious elbow injuries may prevent you from being able to perform tasks such as personal care, cleaning, laundry, mowing your lawns, caring for the garden or other domestic chores. If you formerly performed these duties but are now unable to due to an injury you can claim compensation for care and assistance provided to you by friends, relatives or paid contractors.
In Queensland there is a minimum threshold for this type of compensation.
Interest can generally be claimed on compensation for any out of pocket expenses that are incurred before your claim is resolved.
In general terms, the amount of compensation is gauged by comparing what your life was like before the injury and what it is like now as a result of the injury.
Someone whose injury has had a greater impact on their life will be entitled to more compensation than someone whose injury has had only minimal impact.
The amount of compensation payable for an elbow injury will vary greatly from case to case, depending on a variety of variables such as:
For most personal injury claims, a legal action must be commenced within 3 years of the date of the injury. If you miss this deadline, your claim will be statute barred and you will lose the right to claim compensation.
However, depending on where your injury occurred or who you are suing, specific pre-court procedures may apply. Pre-court procedures have their own time limits which are much sooner. If you miss these time limits you may lose your right to claim unless you can provide good reason for delaying and why you should be allowed to proceed with your claim.
The time limits specified by some pre-court procedures are set out below.
For minors, the obligation to serve the other party with a Notice of Claim begins when the child turns 18, however a parent or guardian may do this on behalf of the minor before they turn 18.
In the case of medical negligence claims, a parent or legal guardian of a minor must serve a Notice of Claim within six years of the day when the parent or guardian knew or ought to have known of the injury.
Depending on the nature of your elbow injury and the circumstances which caused it, compensation may or may not be available. You should always seek expert legal help to see if you are able to make a claim.
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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