Shoulder pain is one of the most common musculoskeletal issues suffered by Australians and 65 to 70 per cent of all shoulder pain complaints are due to rotator cuff injuries.
You may be able to claim compensation for a rotator cuff 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.
Jeff is performing maintenance on a large piece of machinery when it turns on unexpectedly and causes him shoulder injuries. Jeff has received no training in respect of the machinery and it was not fitted with a kill switch or electrical isolation. Jeff can claim compensation from his employer for his personal injuries.
Rick injures his shoulder while performing work on a piece of machinery that turns on unexpectedly. Rick has been trained in respect of the machinery, but fails to use proper procedures to ensure there is no power connected to the machinery before conducting maintenance. Rick would not be able to claim compensation for his injuries as they were due to his own negligence. However, he could apply for Workers Compensation payments while he is off work.
See also: WorkCover claims
If you sustain an injury in a car accident and it was totally or partially due to the fault of another driver or vehicle owner you can claim compensation from the owner of the vehicle that caused the accident through their Compulsory Third Party insurer.
Jenny is injured in a car accident when a delivery truck fails to stop at a red light because its brakes have not been properly maintained. Jenny can claim compensation from the owner of the delivery truck through its CTP insurer.
See also: Motor vehicle injury compensation claims
Occupiers (including owners of private property and public authorities), have a duty of care toward people coming onto their premises. 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 is sitting in a doctor’s waiting room, when a ceiling tile falls from the ceiling striking him on his shoulder / upper arm causing a rotator cuff injury. Jeff can claim compensation for his injuries from the doctors surgery.
Rachel is also sitting in the doctor’s waiting room. She passes her baby up to her husband from a seated position, overloading her shoulder joint and causing tears to her rotator cuff. Rachel is unable to claim compensation since her injury was not caused by an act or failure to act by the doctors surgery.
General damages can compensate you for the pain and suffering you have experienced as well as any permanent loss of enjoyment of life as a result of your 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 an extreme shoulder injury such as joint disruption with a poor outcome after surgery is rated 31 to 50 with a corresponding compensation range of $65,960 to $131,200 whereas a moderate shoulder injury including permanent and significant tissue disruption from tendon or ligament tears is rated 6 to 10 with a corresponding compensation range of $8,630 to $15,350.
To diagnose and treat a rotator cuff injury you may need to consult your general practitioner, consult a specialist, obtain x-rays or MRIs, take pain medications and wear medical supports 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.
Rotator cuff injuries may require surgery to repair tendon or ligament tears. Surgery may also be required to mobilise a frozen shoulder. 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 a rotator cuff injury may involve physiotherapy, chiropractic treatments, acupuncture, home and vehicle modifications and ergonomic aids. Your reasonable costs of rehabilitation can be claimed back as compensation.
If you suffer a rotator cuff injury you may need time off work for several weeks or months immediately after the incident. You can claim compensation for lost income.
If your rotator cuff injury prevents you from working 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 and overhead work may be difficult or impossible for someone who has suffered a rotator cuff 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.
Rotator cuff 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.
Professions that require overhead work have a higher incidence of rotator cuff injuries. This may include construction workers, heavy labourers, carpenters, slaughterhouse workers, fish and meat processing workers, sewing machine operators, industrial workers and athletes.
The rotator cuff is made up of four small muscles and stabilises arm movement. These muscles are vulnerable to tears and inflammation. Incidence of a rotator cuff injury increases with age.
Rotator cuff injuries may result from a variety of causes including: a single traumatic event such as a direct impact, acute overload or gradually as a result of degeneration.
Younger individuals more often sustain rotator cuff injuries after repetitive overhead activities or trauma.
Rotator cuff injuries can affect your mobility with pain and weakness and can prevents a person from being able to carry out daily activities. It can cause sleep difficulties, shorten a sporting or manual labour career and impair a person’s ability to carry out general employment tasks.
About half of all new shoulder injuries resolve in 8 to 12 weeks, however the remaining half can persist longer than a year or two. Recurrence of symptoms is common and a poorer prognosis can be expected with older patients and females.
In general terms, the settlement amount for a rotator cuff injury 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 a rotator cuff 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 all rights to claim compensation.
However, depending on where your injury occurred and who you are suing, specific pre-court procedures may apply. Pre-court procedures specify other time limits which are much sooner. If you miss these time limits you may lose your rights to claim unless you can convince the court that you had good reason for delaying and why you should be allowed to 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.
Depending on the nature of your 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.
Smith's Lawyers are Queensland injury compensation experts and run all claims on a truly risk-free basis, 'No Win. No Fee. No Catch.®'. Unlike the vast majority our competitors, this means no upfront costs or risks.
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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