WorkCover payouts for back injury

When you injure your back at work there are a number of different compensation options open to you. What we will cover in this article is lump sum compensation. Compensation relating to medical expenses and weekly payments are covered elsewhere. 

The two types of lump sum compensation you can receive for back injuries no fault in payment benefit and a common law payment. The difference between the two is that the no fault impairment payment is open to anyone with an accepted WorkCover claim.

You are not required to establish fault on behalf of any other party to be able to make a claim. You are not suing anyone when bringing an impairment claim. 

A common law claim on the other hand involves suing a negligent party. In work upper case is this commonly means that you are suing your employer as the at fault party but it can also be other third parties such as an example of if you are a truck driver making a delivery to another companies depot and are injured at the depot then your common law claim will for the most part be against the owner of the depot rather than your employer. 

Payout amounts available through impairment and common law are very different. Because of the lower threshold to obtain an impairment benefit, the amounts payable are much lower. As a general guide the usual mounts payable for an impairment benefit for a back injury will be in the range of $13,000 to $20,000. In a common law claim even for a claim limited to pain and suffering only (and not including a claim for loss of earnings) you would expect to receive at a minimum $80,000 to $100,000. 

Impairment claims

Impairment claims based upon the American Medical Association guidelines to the assessment of whole person in payment. The spine is divided into the lumbar, thoracic and cervical spine. The cervical spine is in layman’s terms the neck and the ratings for neck injuries a somewhat different to ratings for lower and middle back injuries. 

Lumbar and thoracic spine injuries are assessed on the same scale. If you have minimal or no symptoms and no radiology (damage showing on CT or MRI scans) venue will be assessed as having a 0 percent whole person impairment and you will not be entitled to an impairment lump sum. 

If radiology shows some damage to your spine and you have ongoing symptoms whether that be pain or restriction of movement in the spine then you will likely be entitled to a 5% whole person impairment. What this means in monetary terms depends upon the date of your claim as shown below. 

If you have radiculopathy, which is referred pain or altered sensation in the legs that is verifiable by the radiology then you may be assessed as having a 10% whole person impairment. This will entitle you to around $20,000. 

Neck injuries are assessed at in a different way. The first category still results in a zero percent whole person impairment. The second category also as with a lower back injury entitles you to a 5% impairment. However the next category jumps from 10% to 15% for neck injuries. This will obviously result in a higher payment being payable but the 15% impairment is harder to achieve than the 10% under a lower back injury claim. 

The reason for this difference is that for a neck injury what must be established to show a third category (15%) injury is… 

Higher categories for both lower back and neck injuries that can result in 20% or greater whole person impairments being assigned which will also result in a higher lump sum payment being made. Base assessments are rare and in more severe cases. The most common example of someone having a category 4 (20% ) impairment rating is when they suffer from cauda equina syndrome. This is a condition where the bladder or bowels of the injured person are affected in addition to severe symptoms in the legs. 

Common law claims

Common law claims as we discussed above do require the injured person to show that another party is at fault for the injury. This is most commonly the employer and the fault can be on behalf of either the management of the company or by employees of the company no matter where they stand in the company structure. 

The way compensation is assessed in common law claims is vastly different from impairment claims and takes into account a large number of factors. Where an impairment claim is black and white in terms of I workers entitlement and the amounts payable, a common law claim take into account the individual circumstances of someones claim which does result in payment amounts varying significantly from person to person. Unless otherwise noted, we are talking below about pain and suffering amounts only, and leaving economic loss to one side. 

While anyone that is injured at work can make an impairment claim and then go on to make a common law claim, the amount that they may receive in the common law claim is in no way indicated by whether the person received a 5% 10% ,15% or 20% impairment rating.  

As an example two people could be assessed as both having a 5% whole person impairment for a lower back injury. They would receive the same amount of money on the impairment claim. However when it came to the common law claim, injured person A only received an additional $80,000 where injured person B received an additional $175,000. The difference between the two common law payment amounts could come down to a number of different factors. The most common factor is that the effects of the injury on the second person was simply much greater than they were on the first. This can be the case even though they both scored 5% for their impairment benefit claim. B impairment benefit categories do not really take into account the personal effects of the injury on the injured person. They are more interested in what the radiology shows and fitting people into one of a few select categories. 

When it comes to common law claims we can look at the personal consequences. In the example given above it may be that person A had a fairly limited amount of restrictions caused by their lower back injury and as such they could only obtain $80,000 over and above what they had previously received. As an example, they may have returned to full-time work and only required a minimal amount of painkillers on a weekly basis. They may have had significant amounts of physiotherapy or other medical treatment in the first six months of the injury but after the first 12 months their treatment reduced to one physiotherapy treatment per month. 

Person B on the other hand took multiple panadene forte daily and had only managed to return to work on reduced hours and reduced duties. Their recreational activities were reduced significantly and they were no longer able to play football as they did prior to the injury. 

To take a more extreme example, someone with cauda equina syndrome, severe back pain and an inability to work may receive an impairment payment of 20%. They then move on to their common law claim. Again, putting aside the economic loss component, lets say the consequences of the injuries were as follows: 

• Sleep interrupted due to pain, injured person is only getting 5 hours sleep per night. 
• Is taking endone (a restricted medication) and panadene forte daily, as well as lyrica to try and reduce leg pain. 
• Has urinary incontinence daily. 
• All recreational activities severely restricted, limited to only walking 10 minutes maximum at a time.  

This claim may resolve for $350,000-400,000 for pain and suffering.  

Economic loss

In a common law claim if certain loss of earnings thresholds are met an injured worker can claim common more damages for economic loss. This article will not cover the threshold test to be able to claim loss of earnings. However once the test is met then what the claim will be worth or economic loss will be decided by the evidence as to what the injuries cause in terms of restrictions to the worker on their ability to work. You also look at the age of the worker their occupation, skill set, education, training and any other relevant factors. This will give you a rough idea of how many years of work are left to the injured person and at what capacity whether it be full partial or nil, capacity the worker can sustain. 

Once those factors have been considered there is a prescribed formula that must be used to work out what a future loss of end his claim is worth. It is not as straightforward as multiplying the number of years left by the earnings lost by the worker. There are certain reductions that are made to take into account the possibility that the worker had they not been injured may still not have been able to work until retirement age due to other factors. Is also takes into account the fact that compensation payment for loss of earnings is paid immediately upon settlement or award and not over time as a salary is paid. As a general rule, the younger the person is at the time of settlement of their economic loss claim the greater reduction that will be made to the person’s payment. If on the other hand the injured person is for example one year from retirement age then the settlement amount for economic loss will not be reduced by any significant amount. 

What about liability, uncertainty and other factors?

Of the examples above only take into account the nature of the injuries sustained by the injured person. They do not consider whether the claiming liability is strong, or the injured persons willingness to litigate their claim.  

For example if the claim is going to turn on whether the injured person is believed in their version of events of what occurred at the time of injury or a co-worker who has a different story as to what happened, then the climb may well not resolve four the full amount that it would otherwise be expected to pay. As an example, take injured person be referred to above. We assessed their common law claim for pain and suffering damages as valued at $175,000. However, the version of events given by person B and by a co-worker that was involved in the incident differ in a key point that could make the difference between a successful claim and an unsuccessful claim. If the difference is going to be so significant that the injured person loses their liability claim if the co-worker’s version of events is accepted then it is likely that they are going to consider to resolve their amount for less than the full $175,000. 

Even a claim which seems quite straightforward involves some risk. Except for claims where liability is admitted by the other party there is usually some risk (the degree of risk can vary) that the case could be unsuccessful. As such, when most matters settle, there is some discount made to take into account the potential risk of losing the case. Let’s take the example of a case where it’s claimed that repetitive and excessive lifting over time has caused a back injury. Depending on the nature of the duties the worker performed, and for how long, the strength of the claim will vary accordingly. It may be that the worker was lifting 15kgs repetitively and over a period of 5 years. The claim may settle with a 20% discount as a jury may find that the weight involved was not excessive. If the worker was lifting 35kgs instead, you would not be taking much of a discount, if any.  

Finally, someone may settle their claim for less than it is assessed at due to not wanting to wait a longer time, which increases the stress involved and the potential costs, as well as not having the benefit of having the money.