Permanent impairment definition questioned in appeal

Date: Aug 22, 2018

Under the Workers Compensation Act 1987 (NSW), Section 66 states that a person who is injured while working and suffers greater than 10 per cent permanent impairment is entitled to receive workers’ compensation.

The section then stipulates how much the injured person would be eligible for. This is based on a given percentage of impairment – for example, if you suffer 74 per cent impairment, you are eligible for a compensation amount of $577,050.

But what should happen under the law if a person suffers 100 per cent permanent impairment and thus dies from the injury a few minutes after it took place?

Man is killed within minutes from crash

A man was operating an excavator at his place of employment. and the machine tipped over and crushed the cabin, where he was located. He had immediate respiratory failure, which stopped blood circulation, and he was killed. By the time his coworkers reached him he did not have a pulse. The cause of death was recorded as mechanical asphyxiation.

There was apparently no dispute that the deceased’s heirs were eligible to receive compensation, since he had suffered the fatal injury during the course of his job duties. However, an issue that was brought up was whether or not they were eligible to receive further funds because the injury resulted in permanent impairment, as mentioned under Section 66 of the Workers Compensation Act 1987 (NSW).

An appeal questions terminology in the law

An appeal was filed by the man’s place of work arguing against the claim that further compensation was due because the deceased had suffered 100 per cent permanent impairment (while the law only provides for impairment of up to 74 per cent).

The judge overseeing the appeal took into account that there was a short time between the accident and the man’s death when he was, in fact, still living with an impairment. Death was a permanent consequence as a result of the injury. However, the term “permanent impairment” meant that the person would continue to live but in an impaired state, and thus the term did not mean death.

It was ruled that permanent impairment did not apply to such a case when a fatal injury occurs and the death happens within a few minutes from the accident. The judge’s reasoning was that this section in the law applied to someone who was suffering a lower quality of life related to a work injury. Since the man was only alive for a short time after the accident, the compensation would provide him no benefit.

The appeal was allowed.

If you believe you are eligible to receive workers’ compensation, contact our lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a free consultation.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.