Published: 20 August 2019
Author: Michael Burdess
What happens when another injury develops after my work or transport accident injury?
We have a lot of clients who have an initial injury in a work or car accident and then go on at a later time to develop problems in another part of their body. In many instances it is possible to claim for those additional injuries that you didn’t put in your original claim form. Some common scenarios and likely outcomes follow below.
The subsequent injury
A very common issue we come up against is when someone has injured, for example, their shoulder or their knee. As a result of this they tend to rely more heavily on the other shoulder or knee to get by each day. This can cause further injury to the "good" shoulder/knee. If the medical practitioners are willing to link the new injury to ‘over-reliance’ on that body part due to the injury, then generally it will be accepted as part of the original claim.
More difficult are matters are where there is an injury to a knee or ankle, and that gives way causing other injuries. For example, someone with an injured knee is walking down some steps and the knee gives way and they fall over and sustain an injury to the shoulder. In this type of case we must establish a link between the fall and the original injury. This often requires both medical and factual arguments to be successful.
Delayed or negligent medical treatment
Unfortunately, a regular comment from our clients is that they believe that delayed medical treatment or negligent medical treatment has made an injury worse, or caused a new injury to occur. Often these clients contact us to explore whether there is a claim in medical negligence against the person or organisation that provided the delayed or negligent treatment. In most circumstances, however, the additional injury sustained because of that delayed or negligent treatment will be covered under the original claim.
For example, someone has a car accident and the main injury sustained is to the right shoulder. The injured person may have also noted to their doctor that they had a right elbow injury as well, but it was not investigated, and no treatment was provided in the initial stages while the focus was on the more significant shoulder injury.
At a later date the elbow is investigated and treated, and the client believes that the delay in treatment has caused the condition to be worse than it otherwise would have been. This is very likely to fall under the original Transport Accident Commission (TAC) claim and not form a new claim in negligence against a medical practitioner.
In the vast majority of cases this is, in terms of the legal situation, a good thing for the client. Medical negligence claims are often very difficult and very hard-fought cases as well as being extremely expensive to pursue. While WorkCover/TAC claims are not necessarily easy, they certainly are so when compared to medical negligence claims. The only time where a separate claim against the doctor/hospital would be brought are in circumstances where there has been “gross negligence” on behalf of the medical practitioner involved – which is a very high bar.
When further injury is caused by medical treatment
Let's take the example of someone that sustains a severe injury to their leg in a workplace accident. They require major surgery to repair the leg and are placed under a general anaesthetic for a number of hours. If they develop a complication from the surgery or anaesthetic (not due to any negligence of the treating doctors) this will be covered under the original WorkCover claim. For example, from time to time a person under anaesthetic may have a heart attack or stroke, or have other memory difficulties after the anaesthetic.
As long as the new medical issue can be traced to the treatment, then the new injury will be accepted as part of the original WorkCover claim.
This can be a tricky area of compensation claims. It is always best to obtain advice from a local lawyer than rely on what you are told by an insurance company.