Your Guide to Back Injury Compensation

A ‘back injury’ can describe a range of conditions related to the bones, joints, connective tissue, muscles and nerves of the back. These injuries can occur in various circumstances; however, compensation claims most commonly arise as a result of injuries sustained in a work or transport accident. Back injuries account for approximately one quarter of all hospitalised transport injuries and serious workplace claims.

A back injury sustained through a work or transport accident can significantly impact your wellbeing and livelihood. Even a moderate injury can limit your capacity to work and perform routine daily tasks. Depending on the nature of the injury, these impacts can be wide-ranging and place increased financial pressure on you and your family.

Common Causes of Back Injuries

Work-related back injuries usually occur as a result of a fall or slip, and body stress such as strains when lifting, repetitive movements and postures. They can occur as a result of a single traumatic incident, or as a result of repetitive tasks or duties, accumulating weakness or injury in the affected area over a period of time. Most injuries happen in the lower back and commonly include muscular strains, torn ligaments, nerve damage, herniated disks and fractured vertebrae. Injuries can vary widely in severity.

A back injury requiring a claim for worker’s compensation does not need to have occurred in a single incident. Often repetitive strain injuries take time to develop into serious problems. It is not uncommon for a worker to refrain from lodging a claim for worker’s compensation under the mistaken belief that they will not be accepted because their injury was not sustained in a single, traumatic incident.

Back injuries are also common in transport accidents where the body is unable to absorb the impact or jolt of the accident. Even seemingly minor accidents may lead to severe injury. According to the AAMI Crash Index, the most common type of motor vehicle accidents in Australia are nose-to-tail (rear end) collisions. Back injuries are especially common in rear-end collisions where the sudden thrusting of the body and head forward or backwards can result in damage to various parts of the spine.

Can I claim compensation if I have sustained a back injury at work or on the road?

Yes. In Victoria there are three compensation schemes for personal injury:

  1. Claims made under the WorkCover scheme, which provides compensation to employees who have been injured at work. The scheme is managed by WorkSafe Victoria.
  2. Claims made under the Transport Accident scheme, which provides compensation to people injured on Victorian roads. The scheme is managed by TAC Victoria.
  3. Common Law damages claims as a result of negligence or fault.

Both WorkCover and TAC are ‘no fault’ schemes, meaning that injured parties are able to make a claim regardless of who is at fault. The injury does not need to be serious in order to make a claim under these schemes, although the severity of the injury may limit compensation entitlements.

A common law claim for damages requires the injured party to show that they have suffered a ‘serious injury’ under the law, and that the injury occurred in negligent circumstances.

Is there a time limit for making a back injury claim?

Yes. Time limits vary between states and territories. Victorian legislation imposes strict time limits on bringing a claim for a back injury. These time limits vary depending on:

  • The way you sustained your injury – whether at work, in a transport accident or in some other context; and
  • The scheme under which the claim is brought – whether WorkCover, TAC or Common Law damages.

In order to access benefits under the TAC scheme, you must generally lodge a claim with the TAC within 12 months of your accident.  The TAC has a discretion up to three years to accept lodgement of a claim. After three years, you cannot lodge a claim.

Under the WorkCover scheme, you must notify your employer of your back injury within 30 days of becoming aware of the injury. You must also lodge a WorkCover claim form as soon as possible following the injury. Claims for medical and like expenses must be lodged within six months after the date of the relevant service.

A Common Law claim must generally be commenced within six years of the date of your injury. However, under certain circumstances the time limit may be extended.

If you are unsure about how much time you have to lodge your claim, seek professional legal advice.

How much compensation can I get for a back injury?

Back injuries can be complicated and the amount of compensation you may receive depends on a range of factors, including the severity of the injury and your entitlements under the relevant compensation scheme. You may be able to claim:

  • Medical and hospital expenses including treatment and rehabilitation costs;
  • Compensation for loss of wages and superannuation;
  • A lump sum payment if the accident results in permanent impairment;
  • A common law claim for damages for pain and suffering, loss of enjoyment of life, loss of amenities and potentially also loss of income (past, present and future) if the injury occurred in negligent circumstances and is serious;
  • Compensation for loss of quality of life;
  • Legal costs associated with your back injury claim.

How long will it take to get compensation for a back injury?

The time taken to get compensation largely depends on the severity of your injury, the type of compensation sought and the governing compensation scheme.

For back injuries sustained in the workplace, WorkSafe will pay weekly payments as a percentage of your pre-injury earnings while you're unable to perform the job you were doing at the time of your injury. Decisions regarding weekly payments are usually made within 28 days from the date of making a valid WorkCover claim. If your claim is accepted, weekly payments will usually begin within seven days.

Approved medical and treatment expenses can be invoiced to your employer or to WorkSafe directly. If you choose to pay a medical bill at the time of service, you should be reimbursed within 30 days from the day WorkSafe receives your receipt. WorkSafe will only pay for the approved cost of treatment.

If you work-related back injury has resulted in a permanent impairment, you may be entitled to a once-off lump sum payment called an impairment benefit. Impairment benefits are made in addition to weekly payments for lost wages and medical expenses.

Impairment benefit claims must be assessed by a doctor who is specially trained to evaluate permanent impairment. Assessment can only take place after your injury has stabilised. An injury is considered ‘stable’ if its effects are not expected to change significantly over time or after further treatment. It is important to note that the symptoms of back injuries may take some time to manifest, resulting in longer stabilisation times.

Once your level of impairment has been assessed, WorkSafe has up to 120 days to determine whether you are entitled to an impairment benefit.

For back injuries resulting from a transport accident, the TAC has 21 days after receiving your claim in which to make a decision, except where further information has been requested from you or from a third party. If the TAC accepts your claim for loss of earnings, they will pay into your bank account each fortnight. In most cases the TAC will pay 80% of your gross income, up to a maximum of $1,430 per week for a period of up to 18 months. As with WorkCover claims, you may be eligible for a one-off lump sum payment if you have a permanent back injury caused by your transport accident. In some cases, the assessment process for permanent impairment benefits can take up to 18 months.

What to do if this information applies to you

Understanding what your rights and your entitlements are can be a very complicated business. There are lot of legal terms and particular legislation or legal policies which are applicable in some cases, but not in others, or apply in some states and territories, but not in others. It’s important that you seek legal advice as soon as possible following a back injury to ensure compliance with the relevant time limits and to maximise your claim.

At Gordon Legal, we understand that compensation claims are personal. For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal (Melbourne) on (03) 9603 3000 or our Geelong office on (03) 5202 2729 to speak with a member of our team.

Given the current environment, we are providing consultations over the phone, Zoom, WebEx or Skype.

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