Aggravations of Disease on a Journey are not Compensable By Craig Bell and Stephanie Wigan | April 2011 Area of Expertise | Workers Compensation
Summary In the matter of Abou-Sleiman v P & V Masonry Pty Ltd [2011] NSWWCCPD 21 (1 April 2011), TurksLegal has successfully argued that a worker must be able to establish that he or she sustained a ‘sudden identifiable pathological change’ in order to successfully prove a personal injury on a journey under Section 10 of the Workers Compensation Act 1987 (WCA 1987). Therefore an injury on a journey which is solely an aggravation of a disease will not be compensable.
Who Does This Impact? Claims officers considering liability arising out of a journey claim.
What Action Should Be Taken? Review all journey claims to determine whether the journey injury was solely an aggravation of a disease. This is a complex task as there will need to be an analysis of how the radiological investigations correlate with the worker’s symptoms. Thus, you may need more medical evidence and/or legal advice.
Overview Decision at First Instance - Certificate of Determination dated 3 November 2010 Arbitrator Edwards confirmed that the issue to be determined at the arbitration hearing for this matter was whether the worker had suffered a ‘personal injury’ within the meaning of Section 10(1) of the WCA 1987. The Arbitrator referred to the leading authorities of Armao v Ladue Holdings Pty Ltd and WorkCover Authority of NSW (1992) 8 NSWCCR440 (Armao) and Zickar v MGH Plastic Industries Pty Ltd (1996) 187CLR310 in reaching the conclusion that a personal injury did not include the aggravation of a disease. The Arbitrator referred to the statement made by His Honour Burke J in Armao that ‘the Legislation contemplates that a frank injury on a journey is compensable but that an injury constituted by the aggravation of a disease is not’ (page 5). Furthermore the Arbitrator accepted the respondent/ employer’s submission that in order to succeed with a journey claim a worker must prove that he or she sustained a personal injury which was defined as being ‘a sudden identifiable pathological change brought about by an internal or external event’ as expressed by Deputy President Roche in Yum Restaurants Australia Pty Ltd t/a Pizza Hut Restaurant v Watters [2010] NSW WCC PD31. Arbitrator Edwards analysed the available medical evidence and ultimately concluded that the radiological evidence indicated that the worker suffered from degenerative changes at the L4/5 region, but that there was no evidence of a disc prolapse or any disc protrusion. The Arbitrator determined that the worker had failed to established he had sustained a personal injury during a periodic journey within the meaning of Section 10(1) of the WCA 1987 because the ‘injurious event did not result in the sudden identifiable pathological change brought about by an internal or external event’ (page 7).
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Aggravations of Disease on a Journey are not Compensable by Craig Bell & Stephanie Wigan
Decision of President Keating on Appeal dated 1 April 2011 President Keating confirmed there was no dispute that the worker was on a journey when he was involved in the motor vehicle accident. The issue for determination was whether the worker suffered a ‘personal injury’ within the meaning of Section 10 of the WCA 1987. The President referred to the leading case law as relied upon by the parties regarding the definition of injury on a journey and summarised that ‘in general agreement with Armao … for the purpose of Section 10, the distinction between a disease injury and a personal injury is still valid. To succeed with the claim under Section 10, a worker must have received a personal injury, that is, a sudden identifiable pathological change brought about by an internal or external event. That such a change also causes, or can be characterised, as an aggravation of a disease will not prevent it being a personal injury’ (page 14, emphasis added). The President undertook a thorough analysis of the available medical evidence and concluded that the medical opinion relied upon by the worker of a disc prolapse and radiculopathy was inconsistent with the available radiological evidence that only detected degenerative changes at the L4/5 level. President Keating conceded that it may be reasonable to infer from the available facts that the worker may have suffered an aggravation of a pre-existing degenerative condition to the lumbar spine, but that this was ‘quite a different proposition from accepting, by inference only, that he suffered a sudden identifiable pathological change’ (page 18). Ultimately President Keating determined that he concurred with the conclusion of the Arbitrator at first instance. The President confirmed the finding that the worker did not suffer a sudden identifiable pathological change of the lumbar spine as a result of the motor vehicle collision during the course of a periodic journey on 4 March 2009, and thus ‘did not suffer a personal injury within the meaning of Section 10 of the 1987 Act’.
Conclusion President Keating has confirmed that in order to prove an alleged injury whilst on a journey under Section 10 of the WCA 1987, a worker must be able to establish that he or she has ‘received a personal injury, that is, a sudden identifiable pathological change brought about by an internal or external event’.
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Aggravations of Disease on a Journey are not Compensable by Craig Bell & Stephanie Wigan
For more information, please contact: Craig Bell Partner T: 02 8257 5737 craig.bell@turkslegal.com.au
Stephanie Wigan Lawyer T: 02 8257 5707 stephanie.wigan@turkslegal.com.au
Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property
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