Worker successfully claims compensation for permanent impairment resulting from injuries sustained in multiple workplace incidents

30 April 2021

The Court of Appeal found that a worker’s injuries which occurred in the course of three separate workplace incidents could all be considered as having resulted from the initial incident and therefore could be combined together for the purposes of assessing the worker’s whole person impairment.

In issue

  • The issue for consideration by the Court of Appeal was whether injuries sustained by the applicant in three separate workplace incidents arose out of the first incident and whether the whole person impairment (WPI) for each injury could be assessed together for the purpose of assessing WPI compensation under the Act.

The background

The applicant had a work accident on 14 November 2011 resulting in injuries to her lumbar spine, thoracic spine and right shoulder. On 3 May and 26 September 2012, she had two further accidents at the same workplace resulting in further injuries to her lumbar and thoracic spine. The applicant was referred to an approved medical specialist (‘AMS’) in order to determine the degree of WPI resulting from each of her injuries. The AMS determined that the WPI suffered by the applicant was 15%, comprising 3% in respect of her shoulder injury and 12% in respect of her lumbar and thoracic spine injuries.

The decision of the Workers Compensation Commission

In finding a total WPI of 12% in respect of the spinal injuries the Deputy President of the Commission concluded that because all three incidents involved injuries to the thoracic and lumbar spine, despite having different pathologies, the spinal injuries could be assessed together for the purposes of WPI. However, in relation to the right shoulder injury the Deputy President found that because the shoulder injury did not materially contribute to the spinal injuries it could not be included in the WPI and as such the applicant could not claim WPI compensation for the shoulder injury as it did not meet the 10% WPI threshold under the Act.

The issues on appeal

The applicant appealed on the grounds that she was entitled to have the 3% WPI in respect of her right shoulder injury assessed together with the 12% total WPI found in respect of her spinal injuries and argued that the Deputy President had erred in finding that the right shoulder injury did not materially contribute to the spinal injuries.

The decision on appeal

The Court of Appeal found in favour of the applicant and concluded that all injuries arose from the first incident and should be treated as one injury and combined for the purposes of assessing WPI under the Act. In reaching that decision the Court of Appeal concluded that it is not a question of whether the shoulder injury materially contributed to the subsequent spinal injuries, but is instead a question of whether the later spinal injuries resulted from the injuries sustained in the first incident.

Implications for you

The key takeaway from this case is that provided subsequent injuries have resulted from the injuries sustained in the initial incident then all injuries can be combined to assess WPI compensation. Employers and case managers therefore need to be aware of the impact that subsequent injuries can have on the WPI assessment of a workers compensation claim and early investigation needs to occur into whether or not injuries have resulted from earlier injuries sustained, and whether they relate to the claim for compensation and therefore can be factored into a total permanent impairment award.

Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56

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