23 November 2018
When a consequential condition does not result from a work injury
In the decision of Andersen v J & M Predl Pty Limited dated 20 September 2018 it was accepted that the worker had suffered compensable injury to his left shoulder on 13 July 2010. President Keating was required to decide whether the worker suffered compensable consequential injury to his clavicle.
The worker brought proceedings in the Workers Compensation Commission claiming compensation pursuant to section 60 of the Workers Compensation Act 1987 for treatment of claimed right shoulder and right clavicle conditions. He claimed those conditions were compensable for two reasons:
His right shoulder condition arose as a result of him favouring that shoulder after suffering compensable injury to his left shoulder on 13 July 2010, and
He injured his right clavicle when he fell while getting out of a car on 2 July 2017. He claimed because of the problems with his shoulders he was unable to brace against the impact of the fall as a result of which he injured his clavicle.
Following an arbitration hearing in the Commission the arbitrator found that the worker developed a consequential right shoulder condition as a result of the left shoulder injury on 13 July 2010. That part of her decision was not subject of the appeal to the President.
However, the arbitrator also found the worker’s right clavicle injury sustained in the fall from a car on 2 July 2017 was not the result of or consequential to the injury to his left shoulder on 13 July 2010. That finding was the subject of the appeal to the President.
In finding for the Respondent in relation to the right clavicle injury suffered on 2 July 2017, the arbitrator took into account:
The injury occurred when the worker was exiting a car when his foot got stuck between the kerb and the car, causing him to fall.
The worker’s evidence that he was not able to use his arms to brace his fall as he was protecting his shoulders due to previous operations on both shoulders.
The worker’s claim that the injuries he sustained were consequential to the initial left shoulder injury in July 2010.
There was no evidence that the injuries sustained on 2 July 2017 would not have happened anyway even if the worker had been able to use his arms to brace his fall.
The worker appealed against that part of the arbitrator’s decision to a Presidential member of the Commission.
In deciding whether the injury the worker suffered to his clavicle when he fell out of his car resulted from the compensable injury to his shoulders President Keating said causation is established if the alleged consequential injury results from the accepted compensable injury/condition.
In this case the consequential condition did not result from the injury to the worker’s shoulders. It resulted from Mr Anderson’s foot being caught while he was attempting to get out of the car when his shoe was caught between the gutter and the car he was attempting to alight from. It was that new intervening act (novus actus interveniens) that broke the chain of causation with the original injury.
President Keating also agreed with the arbitrator’s finding that the injuries suffered by Mr Andersen on 2 July 2017 would have occurred even if he had been in normal health prior to the incident. Simply put, there was no evidence that the worker broke his clavicle because he was unable to brace against the fall because of his shoulder conditions. President Keating said the relevant finding by the arbitrator contained no error. The appeal was dismissed.
Where a consequential condition is claimed to result from a work injury it is important to evaluate all the facts to assess whether there is sufficient casual connection between the work injury and the alleged consequential condition. This has been said to require a common sense assessment of the evidence. In determining whether a consequential condition or injury resulted from a compensable injury it is important to consider whether there has been an intervening act which may have caused the claimed consequential condition to occur.
Authors: Clemance Semaan and Malcolm Griffin
Further contact: Will Murphy