Personal injury lawyer discussed compensation claims on 2GB – 1 September 2020

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DK – Deborah Knight / TF – Dennis Kim/ C1,2,3, etc – Callers 

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Listen to the podcast

Read the transcript below:

DK      It’s Tuesday, time for legal matters and we are talking today about personal injury, so if you’ve got a question on that, the open line number 131 873, maybe you’ve been injured and it wasn’t your fault. Maybe you’ve fallen or slipped, maybe at the shops or on the footpath, or had an accident in the workplace. Give us a call now, 131 873. We’ve got a $100 Westfield voucher for the best call. Dennis Kim is a personal injury lawyer with Turner Freeman in Sydney and is on the line for us now. Dennis thanks for joining us.

TF       No worries, how are you?

DK      I’m good, I’m good. It’s one of those things with personal injury, you sort of hear the stories of people who have slipped, you know, they’ve maybe tripped on a grape on the floor of the supermarket….

TF       The classics!

DK      Yea the classics! And they think right I’ve got a claim. But what are the common personal injury claims that you see?

TF       Look, I’d say the most common ones are work related or motor accident related and then followed by accidents in public places, like the supermarket or even a restaurant, I mean there’s plenty a walkway from the restaurant to the bathroom where it’s been covered in grease and I’ve wondered “how is no one slipping on this?”. Wherever someone owes a duty to keep you safe and if you’re injured and you suffer a loss, well that could result in a personal injury claim.

DK      And do you need to have the other party or other person admit to their fault to be able to obtain that claim?

TF       No, no, certainly not. I mean, sometimes Defendants are bound not to give any admissions by the insurer, so it’s actually uncommon to be given an admission as to fault, so no, that doesn’t get in the way at all.

DK      Alright, you might have a question, 131 873. We’ve got calls coming through already, we might go straight to Kate who’s got a question for Dennis today, hi Kate.

C1       Oh hi Deb, hi Dennis. Dennis, mine’s a bit weird. I’m nearly three years into a workers comp claim, but the insurance company has got to the point where, my mental health has just deteriorated, I might add they are paying for anti-depressants and anxiety medication, but the situation is, two examples, I finally got back to see my specialist last week after going to WIRO complaints, and it was approved in 2 days. I need a full reverse shoulder replacement. When I got there, having not received any approval from the workers compensation insurer, I found out that it was approved in December last year, but no one had informed me.

TF       Right.

C1       The specialist in May last year referred me for physiotherapy, 14 months later it still hadn’t been approved after applying 7 times. Finally it was approved for 1 visit, but this has been going on and I’ve had 4 case managers in 4½ months, and I’m just at the point that I… I…..

TF       That sounds like an awful time you’re had.

DK      It does Kate yea.  I mean, she said they’re paying out, but obviously the mental distress that she’s suffered, can that be taken into consideration?

TF       Look, usually not unfortunately. But what we can do, we can help in that kind of situation not arising in the future. Insurance companies are meant to either accept or decline treatment expense requests within 21 days and so what we can do is help workers make a formal application and to chase the insurer within 21 days, and if they don’t respond we can pull out the big stick and tell them that we will take it further, whether that be by way of their internal processes or to the Workers Compensation Commission. Usually it puts a fire under them and gets them moving. It is unfortunate. There has been some reporting in the media recently about certain workers compensation insurers having a turnover of claims managers, things do fall between the cracks sometimes. It sounds like something has gone awry in your matter, it shouldn’t have taken that long and the approval most definitely should have been communicated to you.

DK      Yea, because that seems very unreasonable if it’s been approved, that’s got to be communicated.

TF       Yes, definitely.

DK      Kate, stay on the line, we might get some more details Kate, because Dennis might be able to help you out there if you see further delays, but thank you for the call. Hi Damien, what was your question for Dennis today?

C2       Yea g’day, thanks for taking my call. Dennis, how are you?

TF       Well thanks, how are you?

C2       Yea very well.  My son goes to the local public high school and a few months ago he came out of class, tripped over a bag, seemed like a fairly innocent sort of trip, he skidded along the ground and injured his knee. He’s been diagnosed with nerve damage in his knee. This is 4-5 months along. We’ve seen specialists, he’s had treatments, he’s had all sorts of things and it’s still not repairing. They’re saying it’s going to take quite a long time to heal. We are out-of-pocket with all the stuff that we’ve been doing. We’ve asked the school for a proper report on what happened and that sort of thing but they haven’t supplied it. I heard your show just then so thought I’d give you a call.

DK      I’m glad you did Damien, we’ll find out. Dennis, would Damien and his family have some recourse here?

TF       Look, they may do. I’d be happy to answer your question now, but if you stay on the line I can give some more detailed advice. There’s usually a claims process where the school can provide you claim forms and details for you to make a claim upon their insurer. I could assist with that. Basically, it sounds like your son has had a serious injury and you have suffered out-of-pocket expenses so there would be reason to claim. As for whether there’s been any negligence or they have to have a more detailed chat to you about where the bag was placed, if there’s a proper place to place them, if the teachers were aware that they were placed in a dangerous place where the kids wouldn’t expect them to be, things like that.

DK      Alright, stay on the line Damien, we’ll get your details and hopefully Dennis can help you out further. Thea has a question for Dennis.

C3       Hello Deb. I fell over on between the road and the footpath and they were both very uneasy, and I have to admit, I’m elderly, but since that happened I’ve had miniature strokes because I hit my head, and I’m just wondering if I had a claim for that?

DK      Oh Thea, that’s terrible to hear that you had to go through that. Let’s see if Dennis can give us an answer there. Dennis?

TF       Thea was there anything in particular about the road, or where it met the footpath which made it particularly dangerous?

C3       Yes its very hazardous

TF       What was it in particular about the road?

C3       You know, you’d be walking along and they, they, they’re not even, put it that way. It’s in Oxford Street, Bondi Junction.

TF       Right OK. We may be able to look into it by checking whether somebody has made a similar complaint to the council. One of the tests in council in roads cases is that the council is on notice and that is usually established by bringing up the records and seeing if somebody has complained about that hazard before and whether the council has properly addressed it. So if we searched for the specific place where you had your accident and found there had been complaints or more about it, there may be grounds for a case.

DK      Alright, Thea, we might get your details and pass them on to Dennis to see if we can investigate that further for you because it sounds like a terrible ordeal that you’ve gone through as a result of that fall. Dennis, just with the time limits that people might be interested in, because I know there’s a statute of limitations that often gets talked about, what sort of time limit do you have before you can make a claim?

TF       That’s a really important question. There’s three years from the date of discoverability, which is a bit of moveable feast, so the earliest the three years can run out is three years from the date of injury, but sometimes it may take longer, it might not be right away that you discover or that it’s reasonably discoverable that you were injured severely enough to warrant bringing a claim and that your injury was caused by the fault of another. Sometimes you may need medical advice to find out how bad your injury is, or legal advice to find out that it was likely due to the fault of another person. So it may be that the three years doesn’t start running until you’ve seen a lawyer or doctor. The courts will look back in time and see if you’re moved at a reasonable pace to discover that for yourself, and they put a hypothetical reasonable person in your shoes and see what that hypothetical reasonable person would have done, and if they find yes it would have taken that long to get that advice and to discover there was an action available, they will start the three years from that point in time.  So it’s a moveable feat, three years from the date of discoverability usually.

DK      And Damien mentioned before the break about the school where his son suffered a fall and providing a report of the incident, an incident report, if an injury happens in a work place, does that similar process need to play out? Does the workplace need to provide a written report of what’s happened?

TF       Yes, well actually employers are required to have a notification of injury to notify their workers compensation insurer of the injury within very strict timeframes, so yes, in workplaces it’s slightly different. There are actual requirements mandating reporting.

DK      And if you’re not happy with the compensation amount, or you’re not happy with the decision that’s been handed down, what are your options then?

TF:      Look, the Workers Compensation Commission, if they make a decision you can appeal it to the President of the Workers Compensation Commission, and from there you can appeal further to the NSW Court of Appeal, so there are definitely avenues of appeal. I mean, they don’t always get it right, so yes, there’s definitely avenues of appeal.

DK      And I guess people listening would be thinking “well, is it worth me going through the process of potential years of legal action”. I mean how successful are personal injury claims that you’ve dealt with.

TF       They’re usually quite successful. I think the reason why, and I speak only from personal experience, the reason why is because as an initial conference we will be able to gauge whether or not the claim has prospects, and we won’t proceed if it doesn’t, so of the ones that we accept, they are mostly successful because, you can usually tell from the outset whether or not a claim has prospects.

DK      Well it’s good to get your advice today and we thank you for your time. We’ll give I think Damien our $100 Westfield Voucher for the call today, so we’ll pass that on to Damien. Thanks again Dennis.

TF       No worries, thank you.

DK      Dennis Kim there, and you can contact Dennis or any of the lawyers at Turner Freeman. Their website is turnerfreeman.com.au and their direct number, if you’ve got any queries, is 13 43 63. We talk legal matters with Turner Freeman Lawyers this time every Tuesday.