April 2015

Merchant v Shoalhaven City Council - test for 'seriously injured worker'

[2015] NSWWCCPD 13

In a recent decision, the Workers Compensation Commission (WCC) considered whether multiple injuries in the course of employment could be aggregated to reach the impairment threshold for a ’seriously injured worker’.

Background

This claim involved Shoalhaven City Council, self-insured from 30 June 2004, and injuries to a Council worker before and after that date.

Mr Merchant commenced his employment in October 1998 and suffered injuries on the following dates:

  • 25 October 1989 – back, both legs;
  • 6 April 1992 – back;
  • 12 March 1996 – bilateral hernia; and
  • 5 August 2010 – right shoulder and arm.

Of these various injuries, those on 25 October 1989 and 5 August 2010 were the most significant.

In January 2013 Mr Merchant was assessed, in relation to the October 1989 injury, as suffering 25% permanent impairment of his back, and 10% permanent loss of use of each of his right and left legs at or above the knee.

In November 2013 Mr Merchant was assessed, in relation to the injury in August 2010, as 9% whole person impairment (WPI).  Different assessment regimes applied to each injury.

Legislation

A ’seriously injured worker‘ is one with a degree of WPI greater than 30%.  A seriously injured worker has certain protections within the workers compensation legislation.

Firstly, an insurer (including self-insurers) cannot conduct a work capacity assessment, as a forerunner to a work capacity decision, on a seriously injured worker unless the worker makes a request to that effect.  Work capacity decisions are a means by which insurers can review entitlement to weekly compensation.  In that context seriously injured workers are not likely to be the subject of work capacity assessments and decisions.

Secondly, a provision which limits the payment of medical and like expenses [section 59A] does not apply to a seriously injured worker.

The case

Mr Merchant claimed that he was at least 30% WPI when separate assessments for his right upper extremity, inguinal hernia condition and lumbar spine were combined.  In other words, he asserted that he was a seriously injured worker.  Shoalhaven City Council as a self-insurer, and its insurer on risk prior to 30 June 2004, disagreed.  The dispute was referred to the WCC for determination.

At first instance an Arbitrator at the WCC rejected the worker's claim, and he then appealed the decision to Presidential member.  The appeal was considered by President Keating.

Decision

President Keating decided that there was no basis to aggregate multiple and unrelated injuries for the purposes of meeting the ’seriously injured worker‘ threshold.  His lawyers had argued that the legislation could be interpreted to make reference to ’whose injury‘ rather than ’an injury‘.  In other words, looking at the worker and combining the impairments flowing from all injuries during the course of employment.  The President disagreed.

A number of relevant sections of the legislation make it clear that entitlement to compensation is referenced to ’an‘ injury in the course of employment.  For example, section 9 of the Workers Compensation Act 1987 (liability of employers for injuries received by workers – general) provides that a worker who has received an injury shall receive compensation under this Act.  The provisions which deal with entitlement to lump sum compensation (sections 65 and 66) also make reference to an injury.  And a medical dispute within the meaning of section 319 of the Workplace Injury Management and Workers Compensation Act 1998 includes a dispute as to the degree of permanent impairment of a worker as a result of an injury.

In summary, President Keating found that there was no basis to aggregate assessments of WPI flowing from different injuries for the purposes of determining whether Mr Merchant was seriously injured.

Implications

Mr Merchant’s circumstances are no different from many council employees who may suffer injuries at different times during their employment, but ultimately cease work and receive compensation including weekly compensation.  To be assessed as a ’seriously injured worker‘ offers a degree of protection to review ongoing weekly compensation entitlements under the legislation. 

The effect of this decision is that it will be more difficult for workers to satisfy the test of seriously injured worker because they are not permitted to aggregate separate impairments flowing from different injuries.

Author: Gary Forster

 

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