To combine or not combine multiple whole person impairment assessments?
Have you suffered two injuries from the same event in your workplace? Have you suffered a work injury and then later suffered a second injury while receiving medical treatment or rehabilitation for the first injury? Are you unable to work and looking to claim for your injuries/second injury to receive a lump sum payment? Then read up as this recent clarification in the law may affect you!
On 15 June 2018 the Supreme Court of South Australia delivered its judgment in the matter of Return to Work Corporation of South Australia v Preedy  SASCFC 55.
The judgment is significant as it clearly explains how sections 58 and 22 of the Return to Work Act 2014 (SA) (the RTW Act) interact with respect to combining whole person impairments (otherwise referred to as WPI) where a worker has suffered an injury after the original work injury.
The facts of this case:
In August 2012, Mr Preedy suffered a workplace injury to his left shoulder. He made a claim for compensation for non-economic loss. His WPI with respect to this injury was assessed as 11% and he received compensation. In April 2013, he suffered a C5 fracture (“neck injury”) whilst receiving physiotherapy to rehabilitate his left shoulder. This was given a WPI in respect of the neck injury of 27% in 2016. There were some delays in determining his claim but it is beyond the scope of this article to go into those details!
There was some argument between Mr Preedy and the Return to Work Corporation (the Corporation) as to whether, in claiming for a lump sum payment for non-economic loss under section 58 of the RTW Act, Mr Preedy’s WPI’s should be combined with the WPI of his previous in accordance with section 22 or not.
The Decision and what it means:
If you suffer a work injury resulting in permanent impairment (and a WPI of over 5%) as assessed under section 22, you will be entitled to compensation for non-economic loss by way of a lump sum under section 58 of the RTW Act.
Under section 58(6), if you suffer 2 or more injuries arising from the same trauma, the injuries together may be treated as 1 injury to the extent set out in the Impairment Assessment Guidelines. Trauma means an event or series of events out of which a work injury arises.
The Corporation in Mr Preedy’s case were arguing that Mr Preedy’s second impairment did not arise from the same trauma given that one of the medical health practitioners in his case stated that undiagnosed multiple myeloma was thought to be responsible for the C5 fracture.
Section 22 identifies the way in which permanent assessments are to be assessed. Section 22(8) states provides that impairments from the “same injury” or “cause” are to be assessed together or combined to determine the degree of impairment of the worker. Impairments from unrelated injuries are to be disregarded.
An injury is only compensable under the RTW Act if it arises out of or in the course of employment and the employment was a significant contributing cause of the injury. Employment includes attendance at a place to receive a medical service for a work injury.
It’s important here to understand the difference between “injury” and “impairment” as they are related yet distinct concepts. An injury is defined in the RTW Act as:
“any physical or mental injury including loss deterioration or impairment of a limb, organ or part of the body or of a physical, mental or sensory faculty; or a disease; or disfigurement or –where the context admits- the death of a worker. It includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury.”
Case law notes that an injury is a change in physiological condition. It does not necessarily have to come on suddenly. Meanwhile, an impairment is a condition which arises from an injury.
The interesting thing here is that “injury” arises from “trauma”. Impairments that arise from the same “injury” or “cause” do not necessarily arise from the same “trauma”.
An example to demonstrate this occurs where you have tripped down the stairs at work and suffered a right knee injury. If you then subsequently favour your left knee which then causes you to suffer an injury, the left knee injury may be seen as arising from the same injury or cause under the guidelines (depending upon the timing of symptoms to the left knee). This means that both injuries will be assessed together resulting in a higher WPI percentage and non-economic loss lump sum payment.
His Honour also implied that impairment resulting from medical or surgical treatment of a work injury is to be treated as being from the same cause as the work injury. This could mean that if you are receiving physiotherapy from one injury which causes a second injury, the second injury will be said to have arisen from the same cause or trauma.
This decision is significant as it means that if you meet the test provided in section 22, your injuries could be combined and you could gain a higher WPI assessment. If the combination of your WPI’s is 30% or over (as was the case with Mr Preedy), then you would be defined as a “seriously injured worker” under the RTW Act and entitled to greater financial benefits.
In Mr Preedy’s case, the matter has been remitted back to a single judge to determine the outcome in light of the principles being clarified.
This is a general overview provided for information purposes and does not constitute legal advice. This area is a complex area of law. If you require legal advice regarding your particular circumstances, please make an appointment with Mahony’s Lawyers who specialise in the worker’s compensation area.
Mahony's Lawyers Expertise in Superannuation Claims
Superannuation Law requires expertise and a great understanding of the changes in the superannuation industry to provide the best outcomes for clients. Many of our clients over the years who have been involved in industrial accidents, motor vehicle accidents or are just sick and unable to return to work, have overlooked the fact that there may well be a potential for making a claim against their superannuation fund for Total & Permanent Disablement and Income Protection.
Over the years, superannuation funds have in fact invested some of the member’s monies in securing low cost insurance cover in cases where a person becomes disabled and cannot return to work either on a short term or long term basis.
There are multiple parties involved in a superannuation claim
These claims are effectively subcontracted out to an insurer who deals with the claim. The insurance company who has the insurance risks of the superfund then advises the superfund as to whether or not the claim should be accepted. Ultimately though, it is the superannuation fund Trustee who has to make the decision as to whether or not such a claim is accepted or rejected.
Often the insurance cover is very substantial particularly for any person who is in the earlier part of their working careers. It is not unusual to have Total & Permanent Disablement claims in the order of $300,000.00 - $400,000.00.
Most Income Protection policies in superfunds now cover up to 75% of the usual or average income. There is invariably a waiting time before the Income Protection can be secured.
Professional advice and representation is important
Given the fact that this is a low cost insurance delivered to the superfund due to their membership base, it often takes a long time to secure the benefit from the claim. Further, the insurance companies who manage the risk for the superfund invariably make life difficult for people making claims and often this leads to a rejection of the claim.
We have over the years been very successful in assisting many of our clients in relation to superannuation claims.
One of the first law firms in Adelaide to specialise in superannuation claims
Mahony’s Lawyers was one of the first legal firms in South Australia to specialise in this relatively new area of the Law. Mahony’s Lawyers has developed great expertise in this area over the last decade s since these claims became available to injured or sick clients.
The real advantage in pursuing these claims (where available) is due to the fact that the Total & Permanent Disablement benefits can be paid out over and above other forms of insurance such as Motor Vehicle Accidents, Damages claims and Work Injury (WorkCover/Return to Work) claims. Unfortunately, the position is not as clear with Income Protection policies as often recovery would be required in respect of those claims.
Act sooner than later to maximise your chances of success
Given the complexities of these claims, it is often better to have some legal input into the claims earlier in time rather than waiting for the insurance company to accept a claim which often can be delayed and often denied when a person is unrepresented.
It is important to note though that every superannuation fund often has a different Insurance Policy and criteria for assessment of these benefits. This being the case, it is important to gain legal advice about the benefits of each policy.
Call Mahony’s Lawyers today on 1300 624 669 about your Superannuation claim or a Total and Permanent Disability claim. We have a long and established history of success for our clients in this field of law.