Insurance Publications
2010
July 2010
Impairment - deduction for prior injuries
An assessment of impairment for lump sum compensation or work injury damages must take into account any relevant deduction for previous injury or pre-existing condition or abnormality. In this bulletin we examine recent judicial interpretation of section 323 and how a previous injury should be taken into account when determining impairment following a subsequent injury.
March 2010
The Smoking Gun
The High Court recently had to consider a situation where a plaintiff had been exposed to asbestos, but was also a long-term smoker, such that difficult questions arose about the causation of his lung cancer. In this bulletin we look at the case and the implications of the decision.
March 2010
Fact finding is not disciplinary enquiry or performance appraisal
In this bulletin we review a recent case (Hobden v South East Illawarra Area Health Service, 8 February 2010) which deals with the evidence required for employers to establish a defence under section 11A(1) of the Workers Compensation Act.
2009
June 2009
Behind the veil of self-employment - how to calculate true residual earning capacity
The calculation of a self-employed worker's entitlements under section 40 is never straightforward. In this bulletin we review a recent case which provides some guidance on this issue as well as suggest some strategies which can be adopted in these cases.
March 2009
Is it a claim?
In this bulletin we review an interesting Court of Appeal decision which has implications for the jurisdiction of the Workers Compensation Commission.
2008
September 2008
From the gatekeeper to the Court of Appeal
In this bulletin we review two recent Court of Appeal decisions which look at the roles of the Workers Compensation Commission (WCC) Registrar (or Registrar’s Delegate) as gatekeeper and of an Arbitrator faced with an impairment medical dispute.
August 2008
Managers acquitted
In this bulletin we review a recent case in which the Industrial Court of NSW dismissed OH&S charges brought against a director and a manager of a corporation.
June 2008
Work injury damages threshold - Court of Appeal decision sidelined
In this bulletin we review the implications of a recent Court of Appeal decision in relation to work injury damages.
March 2008
WCC gives short shrift to WorkCover guideline on reactivated industrial deafness claims
On 27 January 2005, WorkCover NSW issued a guideline on reactivated industrial deafness claims to licensed, self and specialised insurers. In this bulletin we look at a recent case which tested the validity of this guideline.
February 2008
Pain and suffering threshold and multiple injuries
In this bulletin we review a recent decision of the NSW Workers Compensation Commission which has confirmed it is not possible to aggregate two separate incidents as one "injury" under the definition in the Workplace Injury Management and Workers Compensation Act 1998 where the pathology suffered in each incident is different.
2007
December 2007
Court says no to NSW police officers' claim for nervous shock damages
In this bulletin we review the decision of Associate Justice Malpass of the NSW Supreme Court in which it was determined two police officers were not entitled to damages for post-traumatic stress disorder.
July 2007
Worker's death not in the course of employment
The NSW Court of Appeal has confirmed the decision of a Presidential Member of the WCC relating to a fatal injury occurring during a work social club activity. In this bulletin we examine the case and provide strategies for employers who want to limit their potential for workers compensation liability when social clubs are involved.
April 2007
High Court decision on Comcare Scheme
In this bulletin we look at a decision of the High Court that may have a significant impact on employers and insurers and employer’s obligations to take out ‘State insurance’.
2006
August 2006
Right to weekly compensation on termination of employment
If an injured employee, suffering no wage loss, is terminated for reasons unrelated to an injury, or, accepts voluntary redundancy, is there an ongoing liability to pay weekly payments?
The answer is usually yes, if the worker has an incapacity on the open labour market caused by the injury. In this Bulletin we look at some recent cases and provide strategies that can be implemented that may minimise liability.
May 2006
Where does an employer's liability start and end?
In this bulletin we provide guidance on minimising the risk of injuries and claims from activities during recesses and outside work, such as, at work sponsored social functions and sporting events and activities.
March 2006
Workers Compensation - New Year, New Changes
The Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act, 2005 introduced a raft of changes, some of which are now operative. The majority of provisions are yet to commence, but are likely to do so in the near future. In this bulletin we summarise some of the more significant changes.
2005
November 2005
Medical Reports - Revisited
In a previous Bartier Perry Bulletin (April 2005) we reviewed a decision of the Workers Compensation Commission and the Pandora's box it had opened up in relation to the admission of medical reports in Commission proceedings. In this bulletin we review a further case where this issue has again been examined by the Commission.
October 2005
High Court reinforces the trend
In this bulletin we review three recent High Court decisions which offer significant support for defendants in the areas of both liability and quantum.
October 2005
AMS Certificates - challenged in the Supreme Court
A ruling of an appeal panel or a decision of the Registrar to dismiss an appeal cannot be challenged in the Workers Compensation Commission. In this bulletin we review two recent decisions of Associate Justice Malpass which explore the jurisdiction of the Supreme Court in this area and review the legislative framework for the resolution of disputed AMS certificates and, in particular, the powers of the Registrar of the WCC.
September 2005
When is a work injury also a motor accident?
It is not uncommon for an employee to sustain injury, in the course of employment, whilst involved in the use of a motor vehicle. In this bulletin we review a recent High Court decision which provides a guide to determining when an injury will also create a liability in a CTP insurer.
April 2005
The changing definition of 'medical report' in the Workers Compensation Commission
A decision of Deputy President Fleming looks at the complex regulations which attempt to limit medical reports used in Workers Compensation Commission proceedings. But rather than crystallising the issue, the decision may have opened up a Pandora’s box.
March 2005
Workers Compensation - A review of recent cases
In this Bulletin we examine two recent, but quite different, decisions of interest to insurers and employers. The first is a decision of the Workers Compensation Commission dealing with the circumstances in which an employer can challenge an ongoing award of weekly compensation. The second is a decision of the Federal Court considering the move by Optus and Toll to leave the Victorian scheme and apply for self-insurance under the Commonwealth Comcare scheme.
2004
November 2004
Watts right?
This bulletin covers a recent case in which the Court of Appeal confirmed that a workers compensation policy does not cover contractual claims.
July 2004
What a difference a day makes
This bulletin examines a Court of Appeal decision on whether the loss of available insurance to a defendant was relevant “prejudice” when the Court was considering whether a limitation period should be extended in favour of an injured plaintiff.
February 2004
A review of Workers Compensation Commission Appeals
Since January 2002, the Workers Compensation Commission has determined about 50 applications for leave to appeal. This bulletin looks at what is involved in making an appeal to the Workers Compensation Commission.
2003
November 2003
Workers Compensation Law Update
In this bulletin we outline some of the major changes to the NSW Workers Compensation system which will come into effect as a result of the Workers Compensation Amendment (Insurance Reform) Bill 2003.
September 2003
Partnerships for Recovery - The McKinsey Review into the NSW Workers Compensation Scheme
In August 2002 McKinsey and Company was engaged by WorkCover NSW to review the workers compensation scheme and recommend how to improve the scheme’s underwriting and insurance arrangements. The following is a summary of the key findings.
July 2003
Principals can be stung for Workers Compensation Premiums of Contractors
From 1 July 2003, a principal contractor may have to pay the workers compensation insurance premiums and penalties of its sub-contractors unless it verifies compliance with premium obligations. This bulletin looks at these new obligations.
March 2003
Courts accept Personal Responsibility
This bulletin will review three court decisions which broadly follow the High Court decisions of Ghantous and Brodie and the earlier Court of Appeal decision in Lombardi. All of these decisions had the effect of requiring the public to take care for their own safety and obliging them to keep a lookout for obvious dangers.
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