Key Points:
-
Injured worker’s entitlements to many compensation entitlements are intricately linked to various WPI thresholds
-
Getting the assessment of WPI right is crucial-which means insurers need to carefully assess the critical steps which can impact the correct assessment of WPI
-
One such area is when a new body part injury is alleged to result from the initial injury – or what is known as a consequential injury
The hurdle for workers to establish a consequential injury is not high. In Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 Roche DP determined a worker need only establish that a consequential condition results from an accepted injury.
But what satisfies that tes is not always clear. In Paul Schembri ats Viadux Pty Limited (previously known as Tyco Water Pty Ltd & Pentair Water Solutions Pty Limited) [2018] NSWWCC 184, Arbitrator Isaksen found that the worker did not discharge the worker’s onus in establishing consequential injuries to the lumbar and cervical spine as a result of compensable injury to the thoracic spine.
The Facts
On 8 May 2006 Paul Schembri sustained injury to his thoracic spine from repetitive jackhammering. Injury was determined in his favour in Workers Compensation Commission proceedings in 2007.
Mr Schembri made a further claim for compensation under section 66 of the Workers Compensation Act 1987 in late 2016, in which the allegation of these consequential injuries was made.
The sole supporting medical evidence was from IME Dr Dias who considered that neck and lower back pain was the result of ‘compensatory overload’ due to the thoracic spine condition, particularly when walking, standing, sitting and driving. However, the Arbitrator was not satisfied that Dr Dias had adequately explained what he meant by ‘compensatory overload’ and how any of those activities caused such a strain onto the neck and lower back from the thoracic spine.
The Arbitrator did not accept the worker’s submission that Dr Dias’ opinion must be accepted in the face of no competing evidence.
The Arbitrator was also not persuaded by Mr Schembri’s own evidence. His statement failed to refer to the areas of his body he ‘overloaded’ to compensate for this thoracic spine nor did he link the pain in his neck and lower back when doing daily activities involving his thoracic spine injury.
For these reasons the Arbitrator found in the respondent’s favour for the neck and lower back.
The Causation Test
The test of causation for consequential injuries was also explored in the recent Presidential decision of Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40. Judge Keating rejected the worker’s allegation that injuries sustained in a subsequent fall were caused by the original accepted work injury.
Mr Andersen dislocated his left shoulder at work on 13 July 2010 and required surgery. He became solely reliant on his right upper limb, ultimately undergoing right shoulder surgery.
On 2 July 2017, when alighting from a car, Mr Andersen fell and suffered, amongst other minor injuries, a fractured right clavicle. He claims he did not use his arms to brace his fall as his instinct was to protect his shoulders.
The Arbitrator’s finding that Mr Andersen sustained a consequential right shoulder condition as a result of the accepted left shoulder injury was not disputed.
The appealable issue was whether the injuries sustained in the 2017 incident were a consequence of the original and consequential conditions to the left and right shoulders.
Judge Keating determined that:
- The Arbitrator did not err in declining to draw an inference that Mr Andersen would not have sustained injuries had he braced for the fall.
- The Arbitrator correctly found that there was a novus actus interveniens (new intervening act). That is, Mr Andersen’s foot becoming wedged between the car and the gutter causing him to strike his head and fall in an uncontrolled manner.
- The injuries would have occurred irrespective of any previous injury or condition, and there was no element of aggravation of the earlier injuries to the shoulders.
- The alleged consequential injuries did not result from injury to the left shoulder and/or the consequential condition to the right shoulder.
Ultimately, the burden of proof rests with the worker. In Schembri, the worker’s expert and lay evidence was insufficient to discharge this onus. In Andersen, the evidence did not establish that the failure to brace was the cause of injury and therefore it could not be said that injury resulted from the compensable shoulder injuries.
What does this mean for insurers?
It is important to identify what is the original injury complained of by a worker.
When treatment is sought for a different body part, or a claim for lump sum compensation is made for a different body part, we recommend determining whether it can truly be said the new injury was caused by the original injury. Factors such as the timing of onset of the new complaints, the underlying objective pathology and diagnosis for the cause of those complaints and a satisfactory explanation of the causal mechanism will be relevant to that decision.
Post by Serena Bentley and Stewart Cameron