Employee efficiently claims compensation for everlasting impairment ensuing from accidents sustained in a number of office incidents

The Court of Appeal found that a worker’s injuries that occurred in the course of three separate incidents in the workplace can all be considered as a consequence of the original incident and can therefore be grouped together to assess the harm to the worker as a whole.

In issue

  • The question for the appeals court to consider was whether the complainant had sustained injuries in three different workplace incidents from the first incident and whether the Whole Person Impairment (WPI) for each injury was combined for the purpose of assessing WPI compensation could be assessed according to the law.

The background

The applicant had an accident at work on November 14, 2011, which resulted in injuries to her lumbar spine, thoracic spine and right shoulder. On May 3 and September 26, 2012, she had two more accidents at the same workplace that resulted in further injuries to her lumbar and thoracic spine. The complainant was referred to a licensed medical specialist (“AMS”) to determine the level of WPI that would result from each of her injuries. The AMS found that the WPI from which the complainant suffered was 15%, of which 3% related to her shoulder injury and 12% related to her lumbar and thoracic injuries.

The Workers Compensation Commission decision

In determining a total WPI of 12% for spinal injuries, the Vice President of the Commission concluded that the spinal injuries could be assessed together for this purpose, as all three incidents concerned thoracic and lumbar injuries despite different pathologies WPI. However, regarding the injury to the right shoulder, the Vice President noted that since the shoulder injury did not contribute significantly to the injuries to the spine, it could not be included in the WPI and therefore the applicant could not claim WPI compensation for the shoulder injury has not reached the 10% WPI threshold according to the law.

The questions in the appeal process

The complainant appealed on the grounds that she was entitled to have the 3% WPI assessed for her right shoulder injury together with the total of 12% WPI for her spinal injuries, and alleged that the Vice President was wrong found that the injury to the right shoulder did not contribute significantly to the injuries to the spine.

The decision on the appeal

The appellate court ruled in favor of the complainant and concluded that all injuries resulted from the first incident and should be treated as one injury and combined for the purpose of evaluating the WPI under law. In making this decision, the appellate court concluded that the issue is not whether the shoulder injury was a major contributor to the subsequent spinal injuries, but rather whether the later spinal injuries were due to the injuries sustained in the first incident.

Implications for you

The main takeaway from this case is that all violations can be combined to evaluate WPI compensation, provided that subsequent violations result from the violations of the first incident. Therefore, employers and case managers need to be aware of the impact that subsequent injuries may have on the WPI assessment of an employee compensation claim, and an early assessment of whether or not injuries are due to previous injuries and whether they relate to the claim Compensation and can therefore be included in a total permanent depreciation.

Ozcan v Macarthur Disability Services Ltd. [2021] NSWCA 56

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