The Trending Consequential Claims

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By Danny Khoshaba, Partner and Olivia Power, Paralegal

Prior to 19 June 2012, workers were able to:

  1. Make claims for lump sum compensation as long as they had a minimum threshold of 1% WPI for physical injuries and 15% WPI for psychological injuries.
  2. Make as many lump sum claims as possible as long as they could establish that they had deteriorated each time after the initial claim (increase claims).

However, the laws changed resulting in claims for lump sum compensation for physical injuries requiring a minimum threshold of 11% WPI (the psych threshold remains at 15% WPI) and limiting workers to bring one lump sum claim only.

Timing is now more important than ever before particularly as workers are troubled by the uncertainty of sustaining a consequential injury/condition coupled with the one (1) lump sum compensation claim restriction.

Those who have made previous lump sum claims and have been saved by the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 appear to be coming back with consequential claims predominantly to obtain the relevant WPI % thresholds, either to:

  1. Entitle them to bring a claim for work injury damages requiring at least 15% WPI as per section 151H of the Workplace Injury Management and Workers Compensation Act 1998; or
  2. Entitle them to claim weekly compensation up to their first anniversary following retirement age and reasonably necessary medical expenses for life requiring at least 21% WPI (worker with high needs or at least 31% WPI for a worker with highest needs).

What is a Consequential Injury/Condition?

This is somewhat of a complex question.   With time it appears that a consequential claim has become an easier test to satisfy given that initially it was believed that a second injury would need to have resulted from an earlier accepted injury.  It has since evolved to there being a consequential loss from an earlier accepted injury.  The most common examples involve an accepted injury to one shoulder or knee which has, due to overreliance and the like, resulted in symptoms and restrictions in the other shoulder or knee.

Test of Causation

The test of causation involves a “common-sense” principle which must be applied to the facts of a case.  Kirby P applied this in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), where he noted:

“The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed the worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement compensation.”

Leading Case Law Application

There have been a few interesting cases on the issue which we refer to below:

Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD (Kumar)

In Kumar, Mr Kumar sustained an injury to his back at work on 19 March 2009. He underwent back surgery on 11 May 2010. Following this, the applicant alleged that he began experiencing ongoing pain in his right shoulder. Accordingly, he attended upon his GP, Dr Di Mascio on 21 June 2010 complaining of right shoulder pain. However, the doctor failed to take any “history on that attendance of the cause of the shoulder pain”. The applicant was referred to Dr Ireland, an orthopaedic surgeon. Dr Ireland wrongly recorded that the applicant had sustained a back and shoulder injury at work. The report of Dr Wallace dated 17 May 2011 provided a correct history of the applicant’s work injury, that being, he only sustained an injury to his back at work.  Accordingly, the Insurer issued a section 74 Notice, which denied liability on the basis that the applicant did not sustain an “injury to his right shoulder arising out of or in the course of his employment and that the employment was not a substantial contributing factor to his shoulder condition” (para 12 of decision).

At first instance, Arbitrator Capel determined that Mr Kumar’s right shoulder injury was not a consequential injury to his back injury or spinal surgery.  He stated that he “had difficulty accepting that the applicant injured his right shoulder [in accordance with section 4 of the Act] on 19 March 2009 given that he has denied having any pain or restrictions and there is no contemporaneous medical evidence prior to June 2010”. However, on appeal, the plaintiff submitted that the arbitrator erred as he did not address the correct question and so, the actual, “question was whether the symptoms and restrictions in the right shoulder resulted from the back injury.”

At [35] of his decision, Deputy President Bill Roche asserted that:

“By asking if Mr Kumar has suffered a section 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent had conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a section 4 injury to his right shoulder”

Accordingly, DP Roche determined that “the symptoms in the applicant’s right shoulder” resulted “from the injury to his back on 19 March 2009”.

Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon)

In Moon, Roche DP set out what is required when dealing with an accepted right shoulder injury which allegedly gave rise to a consequential condition of the left shoulder as follows:

“44. The evidence in support of the allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions on the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder…

  1. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in Section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah, they asked the wrong question.

Intervening acts

In Andersen v J & M Predl Pty Ltd [2018] NSWWCC 141 (Andersen), the applicant had sustained a left shoulder injury on 13 July 2010 whilst employed as a tyre fitter and wheel aligner. As a result of his left shoulder injury, the applicant underwent surgery to his left shoulder on two occasions. Consequently, the applicant became heavily reliant upon his right shoulder, which required surgery. Accordingly, the applicant alleged that he had sustained a consequential injury to his right shoulder.

The applicant also alleged that he had sustained injury to his right clavicle, as a result of his injuries to his left and right shoulder. The applicant alleged that he had “developed” a “habit” following his left shoulder injury, in order to protect his left shoulder. This habit involved pushing the car door open with his foot. On 2 July 2017, whilst performing this habit, the applicant’s shoe became caught “between the body of the car and the kerb” resulting in the applicant injuring his right clavicle.  In respect of the applicant’s right shoulder injury, the Commission found that this was a consequential injury.

However in relation to the clavicle injury the Arbitrator applied the principle expressed in Kooragang stating “the causative chain is broken because the cause of Mr Anderson’s fall was the way he placed his foot and he has not established that had he used his arms that he would not have been injured in any event” (Andersen, para 127). Accordingly, in respect of the clavicle injury, the Commission found in favour of the respondent, that the clavicle injury was not a consequential injury.

The above decision was upheld on appeal by Keating P in Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40.

Take Home

It is crucial to investigate claims involving consequential loss with an emphasis on the following:

  1. The workers’ allegations as to the timing of symptoms, the activities in which gave rise to those symptoms and whether they sought treatment for those symptoms.
  2. Identify the workers’ treating doctors in order to obtain the relevant clinical records to better understand the allegations made by workers in regards to 1 above.
  3. Identify any intervening incidents, (if relevant). These may be identified through the clinical records.  There may also be findings of symptoms well before the accepted injury which would also be relevant.
  4. Arrange in Independent Medical Examination (IME) to review the clinical material and the workers’ allegations and ask for an opinion as to whether or not the claimed symptoms/restrictions (if any) result from the earlier accepted injury.

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