In New South Wales permanent impairment thresholds determine what access a worker will have to statutory benefits and even whether claim for damages can be made.
Generally there can only be one assessment of permanent impairment for all purposes so it is important to understand what injuries can be combined to reach these impairment thresholds.
In assessing the degree of permanent impairment that results from an injury, it is generally accepted that:
All impairments resulting from the same injurious event are assessed together; and
Impairments resulting from the same pathology are assessed together regardless of whether they arise from the same “incident” or separate incidents.
Injurious event
The injurious event does not need to occur at one time. In Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65 Deputy President Bill Roche determined the “injurious event” under s322(3) was the heavy repetitive duties the worker performed with the Department over a period of time.
When does an impairment “result from an injury” if there are subsequent injuries?
Where there has been a subsequent injury, the Court of Appeal in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 adopted three categories for determining the causal connection to the earlier injury:
The three categories are:
where the subsequent accident or injury would not have occurred if the worker had not been in the physical condition caused by the earlier injury, the added damage should be treated as caused by that injury;
where the subsequent accident or injury would have occurred had the worker been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the earlier injury; and
where the subsequent accident would have occurred had the worker been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent and further injury is not causally related to the first.
What happens when a worker suffers injuries in multiple injurious events involving some overlap of different pathologies?
Recently in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 the Court of Appeal had to consider this situation for a worker who sustained injuries to her lumbar spine, thoracic spine and shoulder in one accident. She subsequently had two further accidents where she sustained further injuries to the lumbar spine and thoracic spine but not the shoulder.
The question was whether these impairments could all be combined. If so, she would reach the threshold to bring claims for damages and domestic assistance.
A presidential member of the former Workers Compensation Commission had determined the spinal impairments could be combined because they were the same pathology aggravated in each incident but the shoulder had to be separately assessed as it was not aggravated by the subsequent injuries. The worker appealed and the decision was overturned by the Court of Appeal.
The Court of Appeal considered the worker fell within the second category of causation approved in Johnson. Because the injuries to the lumbar and thoracic spine were worse due to the pre-existing injury, they were all classed as a result of the first injury and were to be assessed together with the shoulder.
This is a complex and evolving area of law and injured workers should seek expert legal advice before finalising a permanent impairment assessment.
Contact us for more information.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
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