INSURANCE COMMERCIAL BANKING
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RECENT DECISIONS
Claims for Lump Sum Compensation – one
impairment from multiple causes
Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015]
NSWWCCPD 35 (15 June 2015)
Link to decision
Summary
Legislation
DP Roche found that a worker can make a
claim for one impairment even if it relates to
multiple causes. That is so even if each cause
was regarded as a separate injury. The use of
the singular “injury” in section 66(1A) of the
Workers Compensation Act 1987 (1987 Act) did
not prevent this. It followed that such a claim,
if disputed, should be sent directly to an AMS.
DP Roche found this was also consistent to the
approach used in work injury damages claims.
Workers Compensation Act 1987 - section 66 (in part)
Unfortunately, DP Roche avoided deciding
whether the three injuries represented the
same “pathology” and whether aggregation of
the injuries was allowed. In our view, disputes
regarding same pathology and aggregation
should be noted before the Arbitrator and
preferably argued before the AMS referral. If
the Arbitrator refuses to do this, in our view,
the arguments can still be raised before an
Arbitrator after the MAC is issued by the Workers
Compensation Commission (WCC).
In any event, the main principle to take from
the decision is that the meaning of the phrase
“an injury” in section 66 as amended can include
more than one injury.
www.turkslegal.com.au Entitlement to compensation for permanent impairment
66 Entitlement to compensation for permanent
impairment
(1) A worker who receives an injury that results in a
degree of permanent impairment greater than
10% is entitled to receive from the worker’s employer
compensation for that permanent impairment
as provided by this section. Permanent impairment
compensation is in addition to any other
compensation under this Act.
Note : No permanent impairment compensation is
payable for a degree of permanent impairment of 10% or
less.
(1A) Only one claim can be made under this Act for
permanent impairment compensation in respect of
the permanent impairment that results from an
injury.
Background
The worker suffered three injuries: she twisted her back
on 24 February 2006; she landed heavily on her buttocks
after a ram butted her in the coccyx on 13 March 2008;
and on 21 July 2011, she tripped in a classroom and fell
backwards jarring her back. All 3 injuries occurred with
the same employer. Each incident was accepted by the
insurer.
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INSURANCE COMMERCIAL BANKING
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On 20 February 2013, the worker made a claim under
section 66 of the 1987 Act for 26% whole person
impairment (WPI). This was based on a report of Dr Assem
who found that the 26%WPI arose from all three injuries.
Dr Assem also apportioned the percentages: 5% to the
first injury; 5% to the second injury and 16% to the third
injury.
The claim was disputed and the matter was brought
before the WCC. At the hearing it was agreed that as the
WPI claim was brought after the amendments (19 June
2012), the amendments to section 66 of the 1987 applied
and so the worker had to prove that he received 11%WPI
or more.
At the Arbitration before the WCC, the employer/insurer
argued that based on the wording of section 66(1A) of
the 1987 Act (one claim…that results from an injury),
the worker must have 11%WPI for each injury and so
therefore, there was no entitlement for the first two
injuries as there was only 5%WPI for each injury. The
Arbitrator rejected this and found that the claim could
proceed to the AMS as claimed.
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DP Roche indicated this was consistent with the approach
in work injury damages claims: Strasburger Enterprises Pty
Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 and
Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA
228.
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The employer/insurer appealed to the Presidential level
and Deputy President Bill Roche heard the appeal.
Decision
DP Roche confirmed, although it was not specifically
argued by the worker, that injury in the context of lump
sum claims, meant “pathology” and not “injurious event”.
DP Roche found that Dr Assem made one assessment
of impairment relating to three injuries and then
apportioned the impairment between the 3 incidents. DP
Roche pointed out that “Apportionment is not the same
as impairment”, and so there was no claim of impairment
relating specifically to each of the three injuries.
Paragraph 53: “It is open to her to make that claim and
the use of the singular (“an injury”) in section 66(1) does
not prevent her doing so. That is because, as Mr Stanton
submitted, and for the reasons discussed below, a single
loss can have multiple causes (ACQ Pty Ltd v Cook [2009]
HCA 28 at [25] and [27]).”
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