Does our personal injury claim stand a chance?

May 20, 2007 10:59 PM

My fiancée is only 24 years old, but she has osteoarthritis (see this previous question). As a result, she has a lot of pain, particularly in her back, but she is just generally sore all over. We suspect that her job (customer service in busy cafe with a lot of heavy manual work thrown in behind the scenes in the kitchen and store rooms) may have exacerbated her condition because before she started there, she never felt the sort of pain she feels now after just two years of working there. We're thinking maybe we should get a personal injury lawyer and see if we have a case. Do the medical and legal minds of the hive think we do, too?

The Medical Opinion.

I know (or assume) the very first thing we will need to do is get a medical opinion supporting the argument that her work has exacerbated her OA. Naturally we will go see her regular doctor ASAP. We know that OA is often hereditary, and this is quite possible in her case as her father has told us he has it. But the difference there of course is she's 24 and he's in his late 40s. So while it seems highly likely she inherited this from her father, we think that her work may have brought it about earlier because of the stress and physical wear and tear she experiences there.

For instance, stress wise, her boss and her boss' bosses intimidate her and the most of the rest of the staff. Hard work is not rewarded (a recently hired new girl was promoted to 2iC above people who had worked there for longer than even my girl). The bosses have their favourites and the favourites get to slack off leaving the rest of the girls to pick up the slack; this of course means extra work.

Even more work comes from the fact that many people have recently left (due to the intimidation) and so to save money they've decided not to hire or train anyone new to replace them. If someone is off sick, there's no one to replace the sick worker so one of the few remaining girls (and more often than not, usually my fiancée) is called in to work a double shift. You also don't get to take holidays when you want to; you take holidays when you're told to take holidays, and the pattern so far has been they let you take 2 weeks every 6 months. This has further stressed my girl because the extra, long shifts have been eating into what little time she has to study for her University degree.

The work itself is also pretty hard. Lots of standing for very long hours. Each day brings dozens of rude customers (causing more stress) with little to no back up from management. My fiancée is usually made to take the industrial rubbish bins down to the compactor by herself. This is a 10 minute walk down ramps, through hallways, down lifts, and back up again, all the while pushing a heavy, wonky wheeled bin. Management also refuses to buy a dishwasher, so the girls are forced to wash hundreds of dishes, knives and forks in a sink that is too low for them for hours, forcing them to bend over forwards for most of the time while doing it. The sink is low because the cafe is located in an old building that is heritage listed; which leads to the other major downside. The heat. In the Australian summer, the heat can get pretty intense, especially in a cafe. Because of heritage laws, management can't install air conditioners (as this would mean damaging the building). They had mobile air-conditioning units for a while but management again decided to remove them; the cost of running them was quite high.

Before you ask, yes, she's planning to quit work (possibly later this week) but we think 2 years of this kind of abuse has taken its toll and possibly brought on her OA long before it would have otherwise reared its head. Do medically minded Mefites agree that this is likely, or would a trip to the doctor for his or her opinion be a waste of our time?

The Legal Opinion.

Assuming that the medical basis is sound, do you think that a personal injury claim against her employer is something that would be likely to succeed, or fail? And does anyone have any idea how long a personal injury claim usually takes to complete, from start to finish?

Thanks in advance, one and all!

posted by Effigy2000 to law & government (17 comments total)

Just... wow.

One question: did you fiance ever inform the employer of her condition?
posted by QueSeraSera at 11:34 PM on May 20, 2007

QueSeraSera: No, we didn't, because before she started we didn't know she had OA. That's because she had never complained of any pain before she started working there. About a year in (maybe earlier, I'm not sure off-hand), the pain started and after it didn't go away, we saw a chiro and a real doctor who both confirmed (via x-ray) she had OA.
posted by Effigy2000 at 11:48 PM on May 20, 2007

I don't know the nuances of such things, especially for Australia, but wouldn't this be workplace injury rather than personal injury?

If personal injury lawyer there are like their US counterparts, they take their cases on contingency. What this means is that it costs nothing to go directly to several personal injury lawyers to get their opinion of whether there's any case here. If they think there's money there, they'll take the case, send her to a doctor who specializes in finding the right things treating her condition, and defer the treatment costs until her case is won/settled. At which point, the lawyer will be paid a hefty percentage of whatever she's awarded.

If you know any lawyers, even friend of a friend, ask for the names of the 3 best PI lawyers they know. 20-30 minutes with each will give you better answers than anyone on the internets can.
posted by nakedcodemonkey at 11:50 PM on May 20, 2007

This should be your first port of call before considering lawyers.

It suggests that a claim will take (within) 40 days to assess.

Here is a link to the Queensland Workers Compensation act (PDF).
posted by strawberryviagra at 12:52 AM on May 21, 2007

in most american states, injuries on the job are covered by worker's compensation. you don't get to file a traditional personal injury suit, you submit a comp claim instead. the advantage is that you don't have to prove fault, the disadvantage is that recoveries are capped, you aren't going to hit a jackpot.

if your fiancee didn't know she had osteoarthritis, how was her employer supposed to know? the four elements of a traditional negligence case are duty of care, breach of duty, proximate cause and damages. surely you're not suggesting that employers have a duty of care not to give new employees hard work, with no knowledge of any adverse medical conditions?
posted by bruce at 12:54 AM on May 21, 2007 [1 favorite has favorites]

Effigy, can you clarify whether you and your fiance have been in Australia all this time? That's really the key to getting relevant advice.

Assuming you are, strawberryviagra's links lead to this which seems like your strongest angle.
posted by i_am_joe's_spleen at 2:26 AM on May 21, 2007

"Effigy, can you clarify whether you and your fiance have been in Australia all this time? That's really the key to getting relevant advice."
posted by i_am_joe's_spleen at 8:26 PM on May 21

Yes, we were both in Australia at the time. We've lived here all our life.

chuckdarwin: "I guess it is true what they say about Americans and lawsuits.

Why would you immediately jump onto the lawsuit bus, here? I don't get it..."

Since I'm an Aussie, I guess that comment seems kind of ironic. But with hindsight, strawberryviagra is onto something. I hadn't even considered workers comp. I'll look into that...
posted by Effigy2000 at 3:12 AM on May 21, 2007

I'm not a doctor, but I did work for a couple of years for a epidemiology lab which studies arthritis, and your question concerns me deeply -- Are you SURE that your fiancee has osteoarthritis?

Because there are some very serious related diseases, such as rheumatoid arthritis (RA) and a host of rarer conditions which tend to have earlier onset than OA. You can't do anything about OA (as ikkyu2 points out in the other thread) except treat the symptoms, but you can do something about RA and the other diseases (many of which are autoimmune related), and in fact they can be deadly without treatment (RA can attack organs). Most are much rarer than osteoarthritis, and many doctor who are not rheumatologists may misdiagnose them as osteoarthritis. In Ontario, for example, GPs have only 9 hours of mandatory rheumatology training. And even if your fiance "only" has OA, she should be under the supervision of a rheumatologists.

(I actually had an autoimmune disease in my eye, which my GP initially diagnosed as pink-eye. I nearly lost my sight in that eye, except that the next day he realised he had been wrong and made sure that I saw a specialist immediately.)

Maybe I'm just fear mongering, and I deeply apologise if your doctor is all correct, but has she/he checked to make sure that the joint damage is not possibly from any other condition? And if they are not a rheumatologist, suggested at least a consultation with one?
posted by jb at 4:39 AM on May 21, 2007

I popped in to say the same thing as jb. Google the differences between osteoarthritis and rheumatoid arthritis. Sorry I don't have time to write a better answer or read the other post.
posted by selfmedicating at 5:14 AM on May 21, 2007

I agree with bruce - if the employer didn't know that your fiancée had OA, how were they supposed to accommodate her?

That having been said, certainly look into your options with Worker's Compensation (and make sure that her quitting won't affect her claim before she quits); I also wonder if some workplace health and safety standards might not have been violated regarding how long she was standing for, counter heights, shift length, break time etc. -- so that might be worth looking into as well, if for nothing else than making it a better workplace for others who are still stuck there.

You still might want to talk to a lawyer regarding navigation of the worker's compensation or WHS processes if you choose to pursue those; they are frequently complex and confusing, and there are things she might have to do now to preserve certain claims down the line. It might also be possible that you'd have a civil claim against the employer if there are still medical expenses that worker's comp won't cover, and the employer was at fault for causing the medical condition that is leading to the expenses (e.g. some WHS standard was violated), but I am completely unfamiliar with Australian law and my guess is that it would be a bit of a stretch.

To sum up, I would try to pursue the administrative avenues before resorting to a lawsuit: it will probably get you what you need faster (lawsuits take years, especially if they go to trial, and then there's the not-so-small matter of collecting on any judgment you are awarded), with less hassle, and it won't clog the courts or (if you do end up suing anyway for some reason) make you look like you're just out to play the lawsuit lottery.

Good luck, I really feel for your fiancée -- I messed up my hands working on the Espresso Bar From Hell when I was in undergrad, but never bothered with a comp claim and I kind of regret it now.
posted by AV at 5:14 AM on May 21, 2007

(none of the above is legal advice; IANAL and I have no formal knowledge of the Australian legal system)
posted by AV at 5:17 AM on May 21, 2007

It doesn't sound to me like she has been asked to do anything unusual for that kind of job. That's why those jobs suck and people don't stay in them for very long (and why their business plan no doubt doesn't expect people to).

IANAL, but I guess I don't see why someone would stay in a job like that if it was exacerbating a pre-existing condition unless they were incredibly desperate, or why a business would be held legally responsible to compensate them for it.

Reminds me of the "Doctor, it hurts when I do this..." joke. If she switches jobs, she'll probably begin to noticeably hurt less, and any treatment she gets will no doubt work better.
posted by hermitosis at 6:24 AM on May 21, 2007

yeah, i think the problem you'll face is that she knew she had the condition going into the job, and could reasonably have expected physical demands. but, even if she had a good prognosis and little expectation that physical labor would cause further damage, the fact that she stayed in the job after her symptoms worsened cannot be the employer's fault, especially since she could have easily cited medical reasons to either change her duties or leave the job. i'm sympathetic that her employer is a bully, but it is up to her to stand up for herself.

so, i'm not sure how sympathetic a court would be to your case, to be quite frank.
posted by thinkingwoman at 6:43 AM on May 21, 2007

Nthing seeing another doctor to confirm the OA diagnosis. From your previous post, it sounds like the doctor looked at the chiro's X-rays and said "Yep, it's osteoarthritis." Did she do any other tests? Blood tests, draw fluid from the joints, etc? These are all standard procedures in order to isolate and confirm a dianosis of OA. (They usually want to rule out RA and other diseases that can cause similar symptoms.) Her major pain seems to be in her back; did they check her for ankylosing spondylitis? If it turns out that she does have an auto-immune disease, stress and being overly tired both exacerbate the condition. (Truth be told, though, bending over a low sink for hours would make even a healthy person's back sore.)

Best of luck to the both of you.
posted by Oriole Adams at 12:16 PM on May 21, 2007

After reading all of the answers provided here, I think strawberryviagara nailed it when she suggested workers comp would be a better (and probably far easier) way to go. Best answer goes to her, but thanks everyone else for your help!
posted by Effigy2000 at 1:37 PM on May 21, 2007

Please do get a second doctor's opinion. People get second opinions all the time for important medical conditions, and this is important. I know you don't have a lot of money, but this is really worth it. If it is RA, then early treatment is crucial.

Info about the differences between RA and OA here and here.

Assuming it is OA, consider glucosamine and chondroitin. It's been studied and does seem to relieve symptoms, build up the cartilage in the joints, and prevent worsening symptoms.

Here are some products. Basically what you want is 500 mg of glucosamine 3 times a day (for 1500 mg/day) plus 400 mg of chondroitin 3 times/day (for 1200 mg/day). Those are the doses that were studied.

Also, weight loss is shockingly effective in keeping the symptoms from worsening. Losing 1 kg cuts your risk of developing further OA in your knees by something like 50%. You don't even have to be really overweight for weight loss to make a difference.

Apologies for posting the medical stuff in the legal thread, but I wanted to make sure you saw it.
posted by selfmedicating at 1:56 PM on May 21, 2007

Thanks E2K - BTW I'm a bloke, but a very sexy one. Good luck with it.
posted by strawberryviagra at 5:55 PM on May 21, 2007