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Permanent impairment compensation

1987 Act section 66 >>

Boenke v Menai Civil Contractors PL [2011] NSWWCC 171. Mr Capel, Arb.

50. Roche DP confirmed in Romanous Constructions PL v Arsenovic [2009] NSWWCCPD 82that an injured worker is entitled to bring a claim for lump sum compensation for apsychological injury and a physical injury arising from the same incident but can only receive compensation for the greater assessed injury...

51. Section 65A(4) does not apply until there are two binding assessments from two AMS’s for the physical and psychological injuries. If the impairment from his psychological injury is assessed to be 15 per cent or greater, the applicant will be entitled to receive the compensation payable and the respondent will be entitled to a credit for the previous payment of $8,250 in respect of six per cent whole person impairment due to his physical injuries. 

Wahidi v Northern Sydney AHS [2008] NSWWCCPD 12. Moore ADP.

32. These issues were considered recently by me in XITMS PL v Castles [2007] NSWWCCPD 222. The nature of the claim was somewhat different to the present claim before me and involved consideration as to whether section 66 losses could be aggregated to reach the section 67 threshold.

33. In Castles, the worker sustained an injury to his right shoulder on 24 July 2003. He subsequently claimed that as a result of the nature and conditions of his employment between 24 July 2003 and March 2005 he suffered an injury to his left shoulder because he was "compensating for the injury to the right shoulder". The question to consider was whether it could be said that the left shoulder injury was as a consequence of the right shoulder injury or a separate and discreet injury giving rise to two separate losses.

34. A number of authorities were referred to in Castles which I do not propose to recite here at length. In short, the concept of favouring one limb causing injury in another is a question of fact to be determined in the circumstances of a particular case.

35. In Bushby & Anor v Morris & Ors [1980] 1NSWLR 81, the Privy Council at page 87 noted as follows:

"It is well established in common law contexts that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently. If any authority be required for that proposition, it is sufficient to refer to Baker v Willoughby, particularly the speech of Lord Reed (1a) where it is to be observed also that he equiparated the legal view of causation in tort to that in the field of workmen's compensation. Their Lordships are of the clear opinion that there is indeed no difference between the two, subject to the qualification that in a claim for workers' compensation it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. The question of foreseeability does not arise. It is sufficient that the incapacity 'results' from the injury by a chain of legal causation unbroken by any novus actus interveniens'.

36. A similar issue was considered by the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267.

37. In that case, the worker injured his left knee and back in May 1998. He subsequently began to favour his right leg and as a result suffered an overuse injury in or about March 1999. In proceedings before the former Compensation Court, he was awarded section 66 entitlements for loss of use of the right leg. On appeal, the Court of Appeal stated that: "The awards for the back and the right leg were the result of the same injury within s67 and the worker was entitled to retain his award under that section: Sidiropoulos v Able Placements PL (1998) 16 NSWCCR 123 approved".

38. As Handley JA said in Dimovski:

"She [the trial judge] then found that 'as a result of the further injury to his left leg' the worker began to favour that leg and as a result developed systems in his right leg. This finding supported the award for the right leg. The Judge followed the majority decision of this court in Colliar v Bulley (2000) 19 NSWCCR 302 ...".


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