Aggregate or Perish: Why and How Injured Workers are Trying to Make it All Add Up

12 February 2018

In the New South Wales workers compensation scheme, as in others around Australia, injured workers are seeking to maximise their assessments of impairment in ways that try to incorporate as many body parts and injurious events as possible into one overall figure.

From the introduction of the Workers Compensation Act 1987, the concept of permanent impairment resulting from an injury has progressively acquired functions as a gateway to other benefits or entitlements under the Scheme.

Initially, injured workers whose injury resulted in a compensable permanent impairment also became entitled to an additional lump sum for pain and suffering.  Legislative changes in 1998 kept the right to lump sum compensation but imposed a threshold of $10,000.00 for the right to additional compensation for pain and suffering.  From that point injured workers had an incentive to aggregate impairments resulting from different dates or types of injury.

In 2002, further amendments changed the method of assessing permanent impairment to a single figure (whole person impairment (WPI)) representing the combined level of all impairments resulting from an injury and used this figure to establish a threshold for access to damages claims against employers.

Further changes to the legislation in 2012 extended the scope of permanent impairment as a gateway to other benefits by imposing impairment thresholds on receipt of weekly compensation and payment of treatment expenses beyond certain defined periods.  For weekly payments this period is 260 weeks; which means there are currently several thousand injured workers whose weekly payments are due to cease on or about Christmas Day 2017 unless they can establish a permanent impairment of greater than 20% WPI.  For those workers the incentive to attempt an aggregation of impairments resulting from different injuries is now acute and we are seeing a corresponding increase in those types of claims.

In the NSW Scheme, section 322 of the Workplace Injury Management and Workers Compensation Act 1998 governs aggregation of impairments resulting from different injuries and provides, relevantly, that:

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

The leading decision in relation to section 322 is that of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 in which the Commission determined that the word ‘injury’ essentially means ‘pathology’.  In practical terms this means that pursuant to section 322(3) injuries to different body parts in the same incident are to be assessed together and pursuant to section 322(2) injuries to the same body part (with the same pathology) in two or more incidents are to be assessed together.

Typically, we are now seeing increasing attempts to argue that certain conditions are the consequence of the original injury and impairments resulting from those conditions should be aggregated.  Often this will involve claims of overuse of the non-injured limb, leading to injury, but it also includes claims such as gastrointestinal impairments resulting from the consumption of painkillers.

Section 322(3) is not controversial and is usually straightforward.  It is section 322(2) which is increasingly the focus of injured workers as they try to aggregate impairments resulting from different injurious events.

In the past, most attempts at aggregation have involved a simple attempt to aggregate impairments to one body part resulting from different injurious events.  In this type of dispute the issue is simply whether the pathology resulting from the two injuries is the same.  The exercise becomes more complicated once multiple body parts become involved.

The NSW Workers Compensation Commission has generally taken the approach that unless each incident involves the same body parts, a worker cannot aggregate all impairments. For example, if a worker suffers an injury to both knees in one incident and to the left knee in another, the worker will be permitted to aggregate the impairment to both knees from the one incident (section322(3)), or the impairments to the left knee from the two incident as long as the pathology resulting from both incidents are the same (section 322(2)).

However, there is precedent to suggest this interpretation of section 322(2) may be open to expansion.  The matter of Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining ats Carrall [2009] NSWWCCPD 76 (Carrall) concerned injuries to both shoulders as a result of the nature and conditions of employment, together with injury to the left shoulder in one frank incident and injury to the right shoulder in a frank incident on a different date.  Acting Deputy President Moore concluded that aggregation of the impairments of each shoulder could not be permitted because the pathology in each shoulder was different.  She implied that if both shoulders had suffered the same pathology, aggregation would have been possible.

The decision in Carrall leaves open the potential for a wider interpretation of the word ‘pathology’ to include pathology of the same type.  Thus far it appears the decision has yet to be applied to other matters, but we expect that workers will increasingly be looking at creative ways of boosting their assessments of permanent impairment.

This article was written by Tim Ainsworth, Partner and Marilyn Cassidy, Senior Associate.

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