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Challenge to new legislation continues

The outcome of the Adco Constructions v Goudappel case will have a dramatic effect on how claims with a date of injury prior to 19 June 2012 are treated . Effectively it may allow claims for permanent impairment  to come under the old legislation as long any type of claim was made prior to 19 June 2012 .An excerpt from Gillis Delaney’s newsletter May 2014 provides further detail as well commentary in relation to deterioration claims . 

The High Court is currently deliberating the appeal in Adco Constructions v Goudappel. The appeal was heard on 1 April2014 and a decision is expected by June 2014. It is widely speculated that the High Court will follow the Court of Appeal’s decision in allowing claims for permanent impairment, provided any type of claim for compensation was made before 19 June2012. If the speculation is correct, we predict there will be a rise in the number of claims lodged seeking additional permanent impairment compensation due to deterioration in the worker’s condition.

Despite the likely increase in claims, the recent arbitral decision of Michael Caulfield v Whelan Kartaway Pty Limited [2014] NSWWCC 50 (“Caulfield”) is a reminder that the onus still rests with the worker to prove that there has in fact been a deterioration that has resulted in additional impairment. Mere medical opinion simply assessing additional impairment will not be sufficient to satisfy the onus of proof on the balance of probabilities.

In the matter of Caulfield, Arbitrator Wynyard was called upon to determine a claimed estoppel by the employer. The employer argued that the claim for additional impairment was based on an assessment of Dr Guirgis which was identical to the assessment of impairment that had been made by another doctor in an earlier report. The earlier report had already been taken into account when the worker had initially been assessed by an Approved Medical Specialist (AMS). The employer asserted that, in those circumstances, there was no deterioration in the condition of the worker’s right knee. Furthermore, the employer relied upon the provisions of Section 66(1A) of the Workers Compensation Act 1987 to dispute the worker’s entitlement to further lump sum compensation in circumstances where the worker had already been compensated for 8% whole person impairment (WPI) following the earlier assessment of the AMS. In the previous proceedings the worker had relied upon the report of Dr Ghabriel who assessed 15% WPI. In the fresh proceedings before the Commission the worker sought an award of an additional 9% WPI.

The worker underwent further surgery to his right knee and a further report from Dr Guirgis assessing 17% whole person impairment was served with the new claim for additional compensation pursuant to Section 66. The employer asserted that it was necessary for the worker to establish there had been a deterioration in the condition of his right knee before the matter could be referred to an AMS.

The Arbitrator Wynyard commented that whilst Dr Guirgis opined that the injury initiated the onset of post traumatic osteoarthritis and the worker would eventually require a total knee replacement, the doctor did not provide an opinion as to whether there had been deterioration since his earlier examination of the worker.

Referring to the decision of Deputy President Roche in Abou-Haidar v Consolidated Wire Pty Limited [2010] NSWWCC PD128, the Arbitrator observed that in deterioration claims if the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. The arbitrator observed that in his most recent report, Dr Guirgis had erroneously assessed a total of 17% WPI whereas the actual total was 15% WPI.

Arbitrator Wynyard noted that no statement had been filed on the worker’s behalf. The Arbitrator commented that evidence from the worker himself may well have satisfied the onus of proof in establishing a prima facie case of deterioration. Arbitrator Wynyard observed that it would be absurd if all that was required to have a worker assessed by an AMS for additional impairment was for the same report of the specialist to be resubmitted. Similarly, as in this particular matter, a further report containing the same opinion would be equally absurd. If this was to be allowed there would be no end to litigation. To refer a further application for WPI without prima facie evidence of an increase in WPI had the potential to cause unnecessary confusion for the AMS to whom the matter would be referred.

The Arbitrator also considered the determination of Acting President Deputy Moore in E v Sydney South West Area Health Service (Concord Hospital) [2009] NSWWCC PD 108, which was concerned with an alleged deterioration of the worker’s sexual function as a result of a back injury. In that matter, the Deputy President stated that the onus of establishing whether or not there has been deterioration lay with the worker. If there was plausible evidence of deterioration, the worker is entitled to be assessed by an AMS. As the medico-legal expert had certified an increase from 20% to 40% permanent loss of efficient use of the sexual organs, Acting Deputy President Moore found that the onus had been satisfied.

Arbitrator Wynyard also considered the decision of Deputy President Roche in Gane v Dubbo City Council [2007] NSWWCC PD140. In that matter an application for further impairment followed a settlement between the parties by way of a Section 66A agreement. Without expressing a concluded view, Deputy President Roche thought it was arguable an estoppel could arise following the Section 66A agreement. An arbitrator’s refusal to refer the matter to an AMS would be in error if the arbitrator firstly did not deal with the estoppel issue.

Overall, Arbitrator Wynyard preferred the view expressed in E v Sydney South West Area Health Service that prima facie proof of an actual change in circumstances needed to be proved otherwise the estoppel created by the original award or judgment would apply. If a prima facie case is not made out in the subsequent application then the employer is entitled to rely upon the continuation of the estoppels. Arbitrator Wynyard determined there was no evidence before him that on the balance of probabilities there had been deterioration in the worker’s condition. Just because there had been further surgery did not automatically provide evidence of deterioration. Indeed, the purpose of surgery was to improve a worker’s condition.

It is also worthwhile mentioning the appeal decision in Campbelltown Tennis Club Limited v Lee [2013] NSWWCC PD50 (“Lee”). In Lee, President Keating commented that in order for the Commission to award a further lump sum compensation, one of the three circumstances set out in Section 66A (3) must be demonstrated. If a worker entered into a Complying Agreement pursuant to Section 66A, then this was a final and binding agreement as to permanent impairment compensation.

Once an agreement had been entered into, a worker must demonstrate an increase in the degree of permanent impairment beyond that agreed previously. If there was no evidence to demonstrate an increase, there can be no referral to an AMS.

Whilst each claim for deterioration leading to additional permanent impairment turns on the individual facts, it would appear that both qualified medical evidence and evidence from the worker evidencing deterioration is required before the claim can proceed to an AMS. The manner of resolution of the initial claim and the evidence supporting the subsequent claim must all be carefully examined to determine whether in fact there is prima facie evidence of deterioration in a worker’s condition since an earlier award or agreement was entered into.

Source: Gillis Delaney Newsletter May 2014

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