Compensation claim dismissed after changes to labourer's whole person impairment

Date:Jan 30, 2019

An initial assessment of whole person impairment will not necessarily stand throughout a case, especially if the defendant's medicolegal checks challenge the plaintiff's certificate. These circumstances can then become very complicated, changing a plaintiff for workers compensation to an appellant before the Supreme Court.

This is what happened in a recent case, resulting in the Court amending the plaintiff's initial whole person impairment assessment and dismissing their appeal later on.

How was the plaintiff injured?

The applicant suffered a lower back injury in 2009 while working as a demolition labourer for the first respondent Worldwide Demolitions Ltd. This was not his first injury suffered while labouring for an employer - in early 2008 he suffered a similar back injury that required surgery later that year. In late 2016 he served the first respondent's insurer with an intention to commence common law proceedings document.

In early 2017 he was assessed by an approved medical specialist, Dr Rosenthal. The doctor determined the plaintiff to have 22 per cent whole person impairment and issued him an appropriate medical certificate. This level of injury surpassed the 15 per cent required to make a claim for work injury damages. The medical assessment also found that previous injuries or pre-existing conditions played no role in the victim's impairment.

How did the employer challenge this medical assessment?

The employer challenged Dr Rosenthal's medical examination on grounds that the applicant's prior history of injury likely affected his impairment. The Appeal Panel's own health check determined that the applicant's actual whole person impairment level was 24 per cent - however, this figure was halved to account for prior injuries. As such, the victim fell below the required mark for compensation.

Why did the applicant appeal this decision?

The plaintiff then appealed the decision in the NSW Supreme Court. He claimed the Appeal Panel made a jurisdictional error by overruling Dr Rosenthal's initial assessment without sufficient reason. The judge disputed this appeal, finding that the panel had recognised a demonstrable error in the initial medical assessment, which should have accounted for the victim's pat injuries. Consequently, the Supreme Court dismissed the appellant's case with summons to pay the costs of each respondent:

  1. Worldwide Demolitions Ltd.
  2. Workers Compensation Commission (WCC).
  3. The Medical Appeal Panel of the WCC.

Workers compensation cases aren't always straight forward. In this case an injured worker went from being in a strong position to earn workers compensation to paying the defendant's cost of summons. Changes of fortune like this demonstrate how important it is to have expert legal help - contact Gerard Malouf & Partners today to discuss your own workers compensation claim.

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