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Further loss

Abou-Haidar v Consolidated Wire PL [Employers Mutual] [2010] NSWWCCPD 128. Roche DP. 10.12.10.

Arbitrator Wynyard had declined the appellant’s application for AMS referral for thoracic spine deterioration.

Roche DP allowed the appeal, remitted to another arbitrator with appeal costs $800 plus GST, arbitration costs dependent on AMS assessment.

The deputy president considered instant circumstances, and outlined lump sum process.

At [48]: “Neither the 1998 Act nor the 1987 Act refer to claims for additional lump sum compensation because of the deterioration of a worker’s condition, or because of an increase in a previously assessed and compensated whole person impairment.

"Nevertheless, the right to claim such compensation cannot be doubted.

"The Workcover Guidelines make express reference to a worker being entitled to re-apply for ‘further evaluation of the condition’ if it deteriorates at a later time: cll 1.24 and 15.10. …

Later, in [55]: “It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS for a further assessment.

"A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a Workcover trained assessor.

"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.

"If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.”

A: Mr J Harris, inst Sanford Legal. R: Mr S Flett, inst Edwards Michael.



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