All posts by Suzanne Wootton

Cyclists and the Gig Economy

Australia has embraced ‘gig economy’ since its arrival to Australian shores in 2015 in the form of two food delivery platforms: Deliveroo and UberEATS. The convenience of being able to order food from your smart phone, in the comfort of your own home and have it delivered to your door (preferably on an environmentally friendly bicycle, of course) has sparked a worldwide phenomenon. From a consumer perspective, the benefits are undeniable. From a worker’s perspective, gig economy work provides the flexibility and autonomy commonly absent in traditional and more rigid workplace structures.

However, this hype has been met with increasing debate surrounding the classification of gig workers. Importantly, why are workers treated as “employees” without receiving the benefits of being an employee?

Prior to a recent Fair Work Care commission decision, gig economy workers were classified as independent contractors, lacking many of the rights and protections enjoyed by employees. For example, they are not covered by worker’s compensation in the event of an injury. This was particularly concerning given the increasing number of injuries and deaths reported when riders were carrying out their delivery services. Between September to November 2020 alone, five food-delivery riders were tragically killed “on the job”.

Busy roads and poor infrastructure, compounded by the time pressure to ensure meals are delivered promptly, make delivery riders particularly vulnerable. Unfortunately, compensation schemes have failed to respond to the rapid growth of these online schemes adequately.

THE CTP SCHEME

In Queensland, the compulsory third party (CTP) scheme provides compensation for personal injury or death arising out of a motor vehicle accident. This scheme is governed by the Motor Accident Insurance Act 1994 (Qld) (MAIA) and is established on an ‘at-fault system’. This means that compensation is only paid to injured road users if they can establish that the injury was caused by the negligence of an operator of a motor vehicle. In other words, someone was “at fault”. So while some injuries suffered by food delivery riders in the gig economy will involve motor accidents, this is not always the case. This leaves many delivery riders exposed.

WORKERS' COMPENSATION

In Queensland, injuries that arise in the course of the worker’s employment are governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld). This legislation established a workers’ compensation scheme with stated objectives to (1) provide benefits for workers who sustain an injury in their employment and (2) encourage improved health and safety performance by employers.

When determining a person’s entitlement under this scheme, they must be considered a “worker”, which is defined as “a person who works under a contract and is an employee for the purpose of assessment for PAYG withholding.”

This begs the overarching question: Are food-delivery riders Independent Contractors or Employees?

In Australia, the law has been somewhat unclear. Until recently, Fair Work Commission decisions ruled delivery riders need not be treated as employees. However, the most recent Fair Work Commission ruling published in May of this year instead ruled that a Deliveroo rider was an employee of the company, rather than an independent contractor.

This decision centered on the unfair dismissal of Diego Franco from Deliveroo, following termination of his account in April 2020. Deliveroo’s primary reason for termination was he had delivered food orders too slowly. The key issue for determination was whether Mr Franco was considered an employee or independent contractor.

Commissioner Ian Cambridge’s ruled in Franco’s, concluding that the relationship between Mr Franco and Deliveroo is that of employee and employer [138]. Mr Franco was, despite aspects of his relationship with Deliveroo, including elements usually associated with that of an independent contractor, engaged in work as a delivery rider for Deliveroo as an employee of Deliveroo. [139].

WHAT DOES THIS MEAN FOR FOOD DELIVERY RIDERS?

The decision strengthens a delivery riders entitlement to workers’ compensation under the legislative scheme in the event of injury during delivery. Whilst much is still to be done legislatively to tighten regulation and accountability in the industry to reduce a delivery rider’s exposure to the risk of injury, this recent decision still signifies a giant leap forward.

Authors

Emily Billiau | Principal

Phone | (07) 3014 6590
Email | [email protected]

Emily is a Principal at McInnes Wilson Lawyers in the Personal Services and Injury team, further managing the CycleLaw division. With a keen interest in cycling-related issues and claims, she has extensive experience in insurance litigation & dispute resolution for cyclists, and is a passionate advocate for cycling clients - whether they be leisure or social riders, professional cyclists or commuters.

Evie Lindstrom | Law Clerk

Phone | (07) 3231 0656
Email | [email protected]

Evie is a Clerk at McInnes Wilson Lawyers’ in the Personal Services and Injury team. She commenced in the firm in the defendant litigation division, transitioning over to personal injury litigation in 2020. With a strong interest in road safety, particularly cycling-related matters, Evie is ready to advance her career by defending cyclists' rights.

Breaking down the smokescreen of uncertainty through a unique step-by-step approach. 

CONTACT US

t      (07) 3231 0413

e     [email protected]

a     345 Queen St, Brisbane City


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Lifetec – January Article

Melissa’s Story – Jennifer Poppe

What role does an occupational therapist play when working with people to select the best product?

Occupational therapists are interested in helping people to do what they want and need to do, within their individual context. Because of this, we help people to look past the bells and whistles of each individual product and focus on what works for them. We also know a lot about the human body and how things can change with different conditions, which means that we can give suggestions about what item or movement will be easier, or what could lead to pain or fatigue over time.

For home modifications, we look at all the different activities that a person does – or wants to do – at home, and what parts of the environment make those activities difficult. From there, we use our knowledge of accessibility and assistive technology options to recommend the modifications that will work for that person.

How does someone organise a home assessment with an occupational therapist​?

Occupational therapists are interested in helping people to do what they want and need to do, within their individual context. Because of this, we help people to look past the bells and whistles of each individual product and focus on what works for them. We also know a lot about the human body and how things can change with different conditions, which means that we can give suggestions about what item or movement will be easier, or what could lead to pain or fatigue over time.

For home modifications, we look at all the different activities that a person does – or wants to do – at home, and what parts of the environment make those activities difficult. From there, we use our knowledge of accessibility and assistive technology options to recommend the modifications that will work for that person.


Lifetec; February Article

Ann’s Story - Alicia Perry

How did LifeTec work with Ann to gain freedom and achieve greater independence?

LifeTec uses an evidence based approach to support people we work with. This involved helping Ann ‘IMAGINE’ her goals and ways of achieving these. Ann was interested in being able to independently transport herself and her mobility aid. We helped her identify what was preferred and the ‘must have’ features, based on their abilities.

We then supported her to ‘SEEK’ options suitable for meeting her goals and discussed the benefits and limitations of the assistive technology options. For Ann, this involved discussing a variety of scooter transportation options such as trailers, hoists and lifters either retrofitted or pre-modified.

LifeTec then assisted Ann to ‘CHOOSE’ the preferred option through trying shortlisted options to see how they would really work for Ann to meet her specific goals. For Ann, she chose the Nissan Cube and we assisted her to access government funding (Vehicle Options Subsidy Scheme) to support her to purchase this.

The final phase was the ‘LIVE’ phase where we provided training to help her use the technology safely and as effectively as possible. For Ann, this involved delivery of the vehicle and hand over, where she could practice using the lifter to get her mobility aid in and out of the vehicle.

What are the top technologies used by Ann? What do these offer her?

Ann required an electric scooter to help her travel long distances to visit shops, get her to appointments and other community spaces. This type of assistive technology offered her the ability to leave her home, drive to her location and have the mobility to access the community environment.

What is involved in identifying each individual’s requirements?

This is a process starting with the discussion of goals, assessment of a person’s physical abilities and then trialling assistive technologies. During these different phases, requirements for the individual are  identified and prioritised. This is a collaborative process which involves the person we are supporting, the LifeTec therapist and sometimes additional support people such as other health professionals, family, carers or friends.


Is Chronic Pain creating Obesity?

In my 31 years of practice as a physiotherapist it has been obvious that there could be a link between obesity and chronic pain. It could be any pain but clinically I have noticed that spinal pain or lower limb pain may contribute more than other areas.

Chronic pain can be classified as pain lasting more than 6 months. Acute pain that has not been resolved will turn into chronic pain. Continuing to exercise through pain without proper modifications or actually doing nothing but complete rest with an injury can mean your pain may turn into a chronic condition.

I am going to focus more on the inactive person in pain. It is essential that after an injury or episode of pain that there is a gradual return to normal movement. Often when we focus on the pain too much we experience a heightened level of pain. Add to that painkillers and our body is unable to resolve the pain naturally. Now I am not saying to not take painkillers if you require them but often people in pain will continue to take painkillers when they should be weaning off. Some painkillers can be addictive and stopping taking them can make us think that the pain returns worse than it was before because we have become so reliant on them.

So you injure your lower back and your GP says to go home and rest, lie down and do nothing. This may be helpful for the first 24 hours but you must get up and move. Resting after injury means Relative Rest and not complete Rest.  Relative rest means that we continue to move as much as the pain allows. This movement actually helps with the healing process. As our pain lessens we then should be learning to activate muscles correctly that may have been inhibited by our pain. Retraining the muscles to work in the correct way and in co operation with other muscles is essential for normalising movement and actually helps to reduce pain.

So we can see that resting completely will not help us to get rid of our pain. If we think about the person who after injury stops moving and rests completely, they never learn how to reactivate the correct muscles and so they cannot possible move efficiently. They become tight and weak in muscles because of their inactivity and so this causes more Pain! It becomes a vicious cycle and starts to affect mental wellbeing also. People with pain as a result of inactivity can often become depressed.

Depressed people often turn to food as it gives them immediate comfort. When being inactive there is not much else to do but eat and sometimes even drinking alcohol can become a problem. Screen time often increases also. You may have heard the term that "Sitting is the new Smoking”. Well it is true. Sitting all day can lead to Obesity!

So if you experience Pain. Make sure that you see a Physiotherapist experienced in not just helping you to relieve your pain but getting your body working optimally again so that you can get back to enjoying your life.

Nobody wants to be Fat and in Pain. Lets make sure it doesn’t happen to you.


Thanks Angela.

Written by Angela Melit of the Pain Slayers at Graceville Physiotherapy

6 Ways to transform your body from a Tech Wreck into a Strong Healthy Active Body

If you have a mobile phone, laptop or tablet and you get neck, upper back or lower back pain chances are you may be a Tech Wreck. I call a Tech Wreck any neck pain that is caused by using these pieces of technology.

In my practice we see many clients showing signs of Tech Wreck.  Susan is a client of ours who comes to mind.  Susan is a Tech Wreck! Susan is a professional in her late 20’s. She spends most of her day on her computer for work. She has deadlines that she has to meet and so can spend up to 3 hours at a time without getting up from her desk.

Susan is also into Facebook, Instagram and Snap chat. She belongs to many Facebook groups for work and to catch up with other special interest groups and loves to post to her friends on Instagram and Snap chat. She texts a lot on her mobile phone as her friends communicate this way also.

When we first met Susan we looked at her posture. She looked overweight, had hunched shoulders and her chin poked forward. We stood her up against the wall and her head did not reach the wall without her tipping her head back. Her stomach poked out also and her knees rolled in.

Susan was getting constant headaches and at the end of the day she was always exhausted and this was starting to impact on her social life. She had pain turning her head and looking up and it was also affecting her sleep. Many of you could be in the same boat if any of this resonates with you.

We decided that Susan would benefit from our “BodyFix” program. We empowered Susan to take her health into her own hands. Susan became the instigator of her program and we became the facilitators. Susan was taught how her body should work so that she could then make important decisions on what she did with her body during the day.

First of all we relieved Susan’s pain and helped her to understand where her pain was coming from. This way she was empowered to eliminate the causes.

Susan asked for a stand up desk that would allow her to stand up while on the computer and because it was adjustable she could lower it to sit for some periods of time also.  She no longer looked down at her screen but looked straight ahead. She used eye drops to help her avoid getting eye strain from too much screen time.

Susan decided to limit her time on her tablet and mobile phone to 10 mins at a time. She used an alarm to tell her when her 10 minutes was up. She could always go back to it later on for another 10 minutes after a short break.

Her life was starting to get back in order and she was feeling strong and confident about her future. We taught her self massage techniques to use when she was starting to feel any strain and she had a list of stretches that she performed daily to counteract the tightness in her muscles. We also gave Susan a strengthening program to start with. Using this as a starting point Susan was then able to find the right exercises for her. Susan was confident in attending gym classes as she now knew what her body could do and what she liked to do.

Susan would come in every 4 to 5 weeks or so for a tweaking of her “BodyFix” program so that we could then teach her more about her body and keep her feeling Strong , Healthy and Active, and also to get on top of any niggles that could potentially turn into problems later on.

Interestingly when we first saw Susan she looked overweight and sluggish. A few weeks into her program she no longer looked overweight. She had transformed into a picture of Health and Vitality. She was actually never overweight at all she just looked it because of her poor posture.

Here are the 6 ways that Susan transformed herself from a Tech Wreck into a person bursting with Health, Strength and Vitality.


Use of a Neck Tek

As soon as Susan felt any inkling of a headache coming on she would lie on her Neck Tek, which I also call the headache remover. If your headache is a result of neck strain then this simple device corrects the muscle action (BodyFix). It will even work if you just lie in it for 10 minutes and do nothing as it corrects body position and facilitates the correct muscles to work.

Susan did not sit or stand at her computer for more than an hour at a time. She had an alarm to tell her when to get up and/or move . This then stops the accumulation of stress in certain muscles.

Susan limited her mobile phone and tablet usage to 10 mins at a time

Susan performed specific neck stretches gently every hour to stop accumulation of tension in muscles

Susan performed specific posture strengthening exercises every morning and night which only took her 5 minutes to do. This then got her muscles ready to take on the load she was going to put on them during the day.

Susan made the decision on which exercise she would do because she knew her body better than anyone else.

In this day and age every single person needs their own “BodyFix” program because everybody deserves to have a Strong, Healthy Active body.

Come and see a Pain Slayer for your BodyFix program.


How to foam roll your neck

Watch this video to get a simple foam roller technique to trigger point your neck, to relieve neck  pain, fast!

You will also learn how to loosen your midback which is another key element to relieving pain in your neck and upper back.

Stay tuned to the end where you will be shown some simple ways to loosen the muscles in your legs which ties in for an all over body massage maintenance

Learning to foam roll is a fantastic way for self-management of those tight and painful muscles all over your body and relieving those stiff and sore joints in your upper back. Its such a simple tool that you can take with you anywhere and use whenever you want. Use it when you are travelling or strapped for time. You can roll as part of a daily regime or get benefits for 2-3 short session a week.

It is so simple you can miss the benefits so give it a go today!


Thanks Sean.

Stay tuned next month for another article from Maximize Health Group.

Check out Sean's other articles below.

1 Simple Exercise to relieve Neck Pain Now
If you have a neck injury which may have resulted from a motor vehicle accident, a fall or an injury[...]
3 Simple Techniques to Get to Sleep with a Whiplash Injury
For this month's contribution from Maximize Health Group, we decided to get some advice on how to get to sleep[...]
Road to Recovery: Top tips to get back after an accident
For this month's contribution from Maximize Health Group, we decided to get some advice on accident recovery.  We have again enlisted[...]

3 steps to get you back into running after having a baby

I am sure that if you are a runner or were a runner and have recently had a baby you would be aware that a high profile trainer (Michelle Bridges) was back running just 3 weeks after having her first baby. Michelle seems like Super Woman and all of us would like to be like her! Why would her pelvic floor be different than ours? Surely we can all run 3 weeks after giving birth also.


Meet OUR Michelle...

Let me introduce you to a client of mine. Her name is Michelle also. Michelle had her first baby at 30 years of age. She used to run for fitness a couple of times a week and play touch football once a week. Michelle ran while she was pregnant up until she was about 6 months, however she stopped because she started to get some lower abdominal pain and started to get some leakage after running more than 2kms. She always found that other forms of exercise just didn’t do it for her so after having her baby she was keen to start running as soon as she could. Michelle had no complications during the birth except for a small vaginal tear which needed 2 stitches and healed quickly. She had some urinary incontinence immediately after birth which lasted about a week. She noticed it when she laughed, coughed or sneezed. Because she had no problems with any leakage after a few weeks Michelle thought that her pelvic floor was back to normal.

Michelle had her abdominals checked for separation after birth and was told that she had only one finger separation between her muscles. Because she only had slight separation she was told that there was no need to wear any form of support garment.

Our Michelle decided if Michelle Bridges could start running again so soon after giving birth, so could she. She was fit and healthy and so decided when her baby was 4 weeks old that she would start running just 2km.


What happened after Michelle started running?

After her first run Michelle felt a little “weird” in the lower back but did not think much of it. Two days later she went for another run, however once again she felt a little uncomfortable. With Michelle Bridges as her motivation she decided to keep going however during her third 2km run she started to get some lower back pain and felt that weird sensation come around into her abdominals. She also noticed that she had some leakage. She started to realise that the running may be causing the pain.

Michelle was really disappointed as she really wanted to be able to run. It was an exercise she loved doing and importantly it a great stress reliever for her. With worries about her lack of fitness, weight gain and the stress of being a new mum, it wasn’t long before the whole family unit suffered. She felt unhealthy, unfit and fat.

Michelle happened to see one of our posts on Facebook about getting back into shape after having a baby and thought that one of our “Body Fix” programs could work for her. Michelle booked in for an appointment. We helped Michelle develop a plan which directed her towards her end goal of being able to run again without damaging anything in the process. She could see that there was light at the end of the tunnel!

Initially we were able to work out that Michelle needed to strengthen certain muscles, relax other muscles and allow her pelvic region to heal before embarking on an exercise program involving running. We gave Michelle a step by step program and educated her so that she was empowered to make decisions about her plan that suited her best.


What happened after the birth of her baby?

Six months after the birth of her baby, Michelle was able to run 3 times a week. Now 6 months seems a long time to wait but Michelle was running better than she had been running even before her pregnancy. Her body was working efficiently, she had a strong core and a strong pelvic floor. She even started to play touch football again.  Michelle was happy that she could eat without feeling concerned about putting on weight, her husband was thrilled because she was so happy and her baby thrived because his mum had plenty of energy and spent a lot of time playing with him. Everybody benefited because Michelle did not settle for being in pain, being unfit and depressed.

  • Number 1. See a physiotherapist who will work out exactly what is happening, what is weak, what is tight etc.
  • Number 2. Work out exactly where you want to be, that is running 3 times a week etc.
  • Number 3. Build a plan with your physiotherapist that you have control over and that they facilitate to get you back to what you love doing.

What would you like to achieve after the birth of your baby?

 It may not be running, it might just be getting Strong Active and Pain free.

You can book an appointment with a Pain Slayer online or call 32781186. 


Why?

Because Pain Slayers believe that everybody deserves to be Strong Active and Pain free.

5 ways to avoid the insurance run-around

Insurers can be hard work.

Why you should be writing everything down.

Notes can be essential two or six or ten months later when you when you put together all the important facts into a final demand for compensation. . 

Having notes to remind you of all of the details of what happened, and what you went through is far easier and more accurate than relying on your memory.

Start by making a word doc or writing in a journal. Alternatively, use Google Docs, so you have access to your notes wherever you are.

There are 6 types of notes your need to start making ASAP.

1. Were you hit by a reckless driver? 

As soon as your head is clear enough, write down all the details of your treatment. 


Take notes of things including:

  • check
    What you were doing
  • check
    Where you were going
  • check
    Location of the accident
  • check
    Who you were riding with
  • check
    Who saw the accident
  • check
    Time of accident
  • check
    What was the weather like?

This is the bulk of your journaling. Do not skip small details. Include every detail of what you saw and heard and felt…

…all of the twists, blows and shocks to your body immediately, during and right after the accident.

Emily Billiau

PRINCIPAL

You don't know how valuable the minor details could be later down the track. Write everything you can think of down.


Be sure to include anything you remember hearing anyone – a person involved in the accident or a witness – say about the accident.

2. Has it left you a physical and emotional Wreck? 

In the first days following your accident, make daily notes of all pains and discomfort your injuries cause.


For at least the first month or two make notes daily on areas such as:

  • check
    Any diagnosed injuries (broken bones, sprains, cuts, abrasions)
  • check
    Any additional aches & pains and the area they are affecting
  • check
    Any anxiety
  • check
    Loss of sleep
  • check
    Or any other problems

Again write down the small details. You may suffer niggling pain that seems inconsequential at the time but may become important when you trying to gain compensation.

Taking notes on your injury will make it easier for you (and possibly your lawyer) to later describe to an insurance company how much and what kind of pain you were in, and for how long.

Writing down your different injuries will also help you remember to report them to a doctor or other medical provider when you receive treatment.

A relatively small snap of the neck, for example, may not seem worth mentioning…

…but it might help:

  • the doctor; and
  • the insurance company

…understand why your bad back pain developed two to three days later, or several weeks, after the accident.

The easiest way to provide evidence of the injuries sustained in the accident is to have them documented in your medical records.


The only way to get your injuries into a medical record is tell your doctor about them and to accurately do that, you will need notes to jog your memory.

Emily Billiau

Principal

Take photographs too...

As the saying goes, a picture is worth a thousand words…and then some. Photos are useful because they…

…preserve evidence of the extent of the injury

…show the damage better than you can describe them

…are difficult to contradict. An insurer will find it harder to deny the evidence in a photograph. 

Wounds and injuries heal. Without photographs it will be difficult later to convince an insurance company in the ways and to the degree you claimed.

...And get immediate medical attention

Failing to seek immediate treatment can lead an insurance company to believe that your injuries were not that serious, or that you made them up entirely.

Emily Billiau

PRINCIPAL

Don’t be a hero. Seek medical attention or it may come back to bite you when you really need it.


The high cost of medical treatment often makes people reluctant to see a doctor or physio.


But in the case of an accident where someone else was at fault, that person or business, through it's insurance company, will be obligated to repay you for all reasonable medical expenses associated with your injury.

3. Has it drained your bank account?

You may also be entitled to compensation for economic and other losses. But you will need documentation.


Most claims for economic loss rely on you proving that you either:

  • check
    couldn't go to work;
  • check
    lost your job;
  • check
    or missed work opportunities (promotions, new jobs, pay rises etc.)

...because of your injuries. 

Other important notes to make that don’t relate to your economic loss but rather cover your general loss of enjoyment of life include missed:

  • check
    classes
  • check
    events
  • check
    family or social gatherings
  • check
    holiday
  • check
    or anything else that would have benefited you or that you would have enjoy but were unable to do because of the accident. 

Make note of these factors too. They can often be overlooked in a compensation claim and can be financially compensated for.

4. Notes about the scene of the accident

Return to the scene of the accident as soon as possible to locate any evidence and photograph any conditions you believe may have contributed to the accident.

Draw a diagram of where key things were/are located such as:

  • Your bike
  • The vehicle/pedestrian/other bike
  • Lanes
  • Skid marks
  • Traffic lights
  • Witness location (see below)

Again, take photos from a range of angles. Be sure to take them at around the same time of day as the accident to show the appropriate light and traffic conditions.

5. Why you need willing witnesses

Having a witness on your side is powerful.

Witnesses may be able to describe details that confirm what your believed happened. This backs up your story…

…and ensures that the insurer can’t dismiss your claim.

Here’s how to gather evidence from witnesses so that the insurer cannot disregard their statement. 

  • check
    Write down the witnesses’ names, home addresses, email addresses, and home, work or mobile numbers – as many details as they are willing to provide.
  • check
    Talk with witnesses about what they saw and ask exactly where they were when they saw it (note this on your sketch above).
  • check
    Ask the witnesses if it would be okay for you to write up what they told you and send it to them for confirmation on its accuracy. Ask if they would be willing to sign the document and send it back.

A quick note on other conversations too.

Start taking notes about conversations (telephone, in person or emails) that you have witnesses, insurance companies, lawyers and medical personnel (such as other doctors, nurses or admin staff).

Make written notes of the:

  • date
  • time
  • people involved and
  • contents

...of every conversation you have about your treatment or complaint. 

6. How to avoid taking a knife to a gunfight

This last point is less about note-taking and more about taking an extra action that covers all your bases so no insurance company can discount you as a liar.

In the course of your claim, you will likely be told or promised something or given some information that you want to make sure isn’t denied at a later date

…such as…

…the witness statements or

…results of tests

…when you expect to hear the result of your complaint.

Immediately after the conversation, send a letter confirming what the person told you. The letter does not have to be elaborate, just a brief restatement of what was said.

Make a copy for your files before sending it on.

A sample email or letter can be shown below

Sample Letter

Mr Smith
111 Smith Street
Brisbane QLD 4000


Dear Mr Smith,

This email is to confirm our telephone discussion on January 2, 20xx in which you informed me that you would advise me of the outcome of my claim  by no later than January 15, 20xx. 

Thank you for your attention to this matter.

Kind regards,

Julie Kim

Stay Strong

The claims process can be a battle of determination. But with these notes, you will be holding all the cards.

Part 4: How much is my claim worth? – Pain & Suffering

Emily Billiau

Principal

It is a significant part of a compensation claim.


Particularly for those who cannot claim wage losses, such as young people, retirees or the unemployed, pain and suffering often comprises the most considerable part of a compensation claim

We are back again with the final part of our four-part series on quantum or how much is your claim worth.

As discussed in Part 1, Part 2 and Part 3, many factors influence the amount of compensation a person can receive.

In this article, we learn about the final factor (or head of damage in legal-speak), known as pain and suffering.

For the injured person, the suffering post-incident can feel like it has the most significant impact on their life.

The hardest part is quantifying that intangible pain left after an injury. While difficult, it shouldn’t be overlooked.

What are pain and suffering damages?

Pain and suffering damages (aka general damages) refer to an award given by the court to the plaintiff for physical and emotional pain due to injury, illness, or loss. 

These damages are not the same as economic damages, which reimburse the injured person financially but are meant to assist them with the pain inflicted after an incident.


What are some examples?

Typically, claims for pain and suffering are for such things as:

  • Actual pain and suffering experienced
  • The pain and suffering you will encounter in the future
  • Loss of enjoyment of life
  • The inability to participate in your pre-injury sports, hobbies, education and recreational activities
  • The shortening of your life
  • Grief over the death of a loved one

Unfortunately, just because you may have experienced pain and suffering does not mean you will necessarily be entitled to compensation for it.


Why would you not be entitled to it?

The awards for pain and suffering depends very much on the circumstances surrounding the incident in which you were injured.

For example, being injured at work can result in different compensation entitlements to being injured in a car accident or a fall in a shopping centre. 

This difference is because there are different laws apply to each type of accident.


How is pain and suffering proven?

The pain and suffering of an individual can be subjective and very difficult to prove.

Medical experts are typical witnesses in these cases and often pivotal to a cases success. 

This is because they can determine the impact the injuries may have had on the injured person's livelihood. They can do this based on an Injury Scale Value (ISV) scale (see below).

However, the court takes into consideration other factors in its analysis, including:

  • The extent of the injury, as well as the medical diagnosis and prognosis.
  • Length of time that the symptoms have been presenting.
  • Physical or mental limitations in the plaintiff’s daily life (e.g., work, school, everyday tasks).
  • Accounts of other individuals with similar injuries, and the extent of their reported pain and suffering.

How much can you claim?

More on the ISV Scale…

Without getting too complex, the ISV scale is used to calculate pain and suffering damages in Queensland.

The scale regulates the award given for the areas of compensation based on the individual's level of injury.

Each injury has a corresponding ISV range. For example, a minor injury such as whiplash might have an ISV range of 5 – 10. Whereas, a severe injury such as quadriplegia may be at the top of the scale at 100.

Medical experts can help determine where a person might sit on this range.

Once the ISV range is known, then that range corresponds to a monetary amount on the scale.

For bicycle injury claims, your ISV range can be determined from the civil liabilities act Schedule 4.

These can be very subjective and confusing, so we recommend seeking expert advice before lodging any claim.

Tips for maximising your settlement amount.

When filing a claim that involves pain and suffering damages, you may wish to follow these guidelines:

  • Try to be as specific as possible when presenting your condition- vague conditions that can’t be proven will not result in an award of compensation
  • Make a log of your injuries before and after the incident - this will help to determine how your pain and suffering is related to the event, whether it be a car accident, slip and fall case, or another type of personal injury
  • Keep all written legal documents, such as police reports, medical receipts and bills, pay slips, and other records that can be used as evidence

Finally…

Be sure to read up on the other areas of compensation available to you to maximise your overall settlement amount. Click the links below to read them all.

Part 1: How much is my claim worth? – Future Economic Loss
Emily Billiau Principal ​Most people have heard of personal injury claims but very few would understand what quantum is. …and[...]
Part 2: How much is my claim worth? – Care Costs
Emily Billiau Principal Care costs can be the single most significant component of a claim.  Particularly when the injured party[...]
Part 3: How much is my claim worth? – Medical Expenses
Emily Billiau Principal Medical Expenses are a crucial part of all claims for compensation. Why? Well apart from the obvious[...]

Written by Emily Billiau | Principal

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Part 3: How much is my claim worth? – Medical Expenses

Emily Billiau

Principal

Medical Expenses are a crucial part of all claims for compensation. 


Why? Well apart from the obvious fact they pay for the cost of any medical treatment...


... compensation for medical expenses allows you to recover to your fullest extent as it removes the stress of working how you are going to afford it. 


It also gives you access to the tools needed to get back on with life, if you are unlikely to make a full recovery. 

We are continuing our four-part series on discovering the areas that your can claim under. 

Understanding these areas, will allow you to estimate how much your claim is worth. 

In this article, we unpack what medical expenses you can claim for, some example claims and the evidence you will need when approaching the insurers.

Don't forget to read  Part 1 on future economic loss and Part 2 on care costs

What are medical expenses?

Without stating the obvious too much, medical expenses relate to the costs of rehabilitation following an injury.

The expenses include both past fees that were already paid for, as well as future medical costs.


How much can you claim?

As is the case in every other area of compensation, the amount that can be recovered will vary depending on the individual’s treatment plan and care needs.

Some real-life case examples have been provided.

Example 1 - Slip & fall, permanent brain injury

Adam was cycling home from work one afternoon when a car failed to see him ahead and collided into the rear of Adam's bicycle.  Adam was throvn over his handlebars and landed heavily on his right shoulder. The force of the fall smashed his head into the ground. Despite the fact he was wearing a helmet, Adam suffered a brain injury. He was kept in hospital for a week to monitor his head and other injuries.

Adam has substantial memory deficiencies now. He finds it difficult to concentrate and had to relearn basic skills including walking and talking. 

Beyond that, he has significant post-traumatic stress disorder after the accident and cannot be in a car, let alone a bicycle. 

To facillitate his recovery, Adam requires comprehensive rehabilitation including physiothereapy, pyschology and others. He also needs the help of various assistive technologies to aid his walking.  

Because his life was irrevocably changed at such a young age and he requires significant ongoing treatment and assistive technology, Adam was awarded $409,000 toward his medical expenses.

Example 2 – pedestrian accident, ongoing hard damage

John was cycling along Moggill Road when a driver suddenly exited their driveway onto the road, taking John out with them. 

John flew over the back of the car. He landed heavily on the road, breaking his left ankle in the process.

The significant impact also caused nerve damage to his right arm. After much rehabilitation, John's nerve damage still causes him constant pain. He now requires regular doses of pain killers to manage his ongoing injury. 

John was awarded as part of his compensation a total of $32,496 for the cost of his past and future medical expenses (including medical appointments, medications and rehabilitation treatment).


What can you claim?

Some typical medical expenses that are included in a compensation claim include:

  • Hospital bills
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    Diagnostic testing expenses (laboratory fees)
  • check
    Surgery costs
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    Therapy and rehabilitation costs (including physio, massage, psychology and much more)
  • Cost of prescription medicines
  • check
    Cost of future home modification
  • Cost of any assistive technology required (crutches, wheelchairs, modified cars etc.)
  • check
    Pain management

For this reason, it's essential to be very thorough when documenting injuries in your claim file so that it is possible to calculate damages to account for future problems.

It is also important to attend all medical appointments or therapy sessions.


What evidence will you need?

Proving these expenses may require the help of an expert medical professional. Usually, thorough documentation is needed to calculate the total costs of medical treatment. These may include the presentation of various items of evidence in court, such as:

  • Hospital bills;
  • Chiropractor or medical therapy costs;
  • Medical treatment receipts;
  • Pharmaceutical bills; or
  • Any other documents showing the costs of the medical expenses

Keeping a clear record of items related to your injury is paramount to maximising your compensation amount.

As the old bible saying goes – Ask, and you shall receive.


There are many cases we have seen where critical medical expenses have been left out of a person’s compensation because of inadequate documentation, or they just forgot to include it.


It is crucial to gain expert advice from occupational therapists and doctors on likely requirements you will need in the future.


Small expenses such as assistive technology and home modifications are often overlooked but can be so important to an injured person’s quality of life.

Emily Billiau

Principal

Keeping a record of the medical expenses (treatment costs, medications, assistive technology) you had due to your injuries is very important, as it can mean the difference between having a claim for care and assistance, or not having a claim at all.

Keep a spreadsheet that details the following:

  • Type of service or item
  • Service or item provider (doctor surgery or pharmacy)
  • Date of service/purchase
  • Cost of service/item
  • Will the service/item be required in the future and how often

To help ensure that you maximise your damages, keep in mind the following helpful tips:

  • Buy all of your prescriptions/dressings/painkillers etc. from the one pharmacy and ask your pharmacist to record all of your purchases.  When it comes time to claim your damages, you can simply obtain a printout from the pharmacy;
  • Keep receipts for any purchases that you have made;
  • Photocopy or scan those receipts, in case they get lost or destroyed;
  • Consistently fill out the table as each service is provided.

Next Steps...

Don't miss out on other aspects of your claims...

...read the other blogs in the series below.

Part 1: How much is my claim worth? – Future Economic Loss
Emily Billiau Principal ​Most people have heard of personal injury claims but very few would understand what quantum is. …and[...]
Part 2: How much is my claim worth? – Care Costs
Emily Billiau Principal Care costs can be the single most significant component of a claim.  Particularly when the injured party[...]
Part 4: How much is my claim worth? – Pain & Suffering
Emily Billiau Principal It is a significant part of a compensation claim. Particularly for those who cannot claim wage losses,[...]

Written by Emily Billiau | Principal

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