Relevant Particulars for Lump Sum Claims By Craig Bell | June 2009 Area of Expertise | Workers Compensation
Summary The WCC appeal decision of Walker v Roberts (2009) NSWWCCPD 66 (11 June 2009) provides focus for insurers on the importance of ‘relevant particulars’ and the importance of managing lump sum claims properly at first instance. The decision also confirms that the question of whether or not separate injuries can be aggregated to one WPI, is a legal issue.
Who Does This Impact? Insurers
What Action Should Be Taken? When analysing lump sum claims, insurers must determine carefully whether all particulars have been given. Just because an insurer may see problems with the way a claim is framed, does not necessarily mean that all relevant particulars have not been provided. Thus the insurer should err on the side of caution and consider an IME pursuant to the WorkCover Guidelines, as well as maintaining there are sufficent particulars, if appropriate. Failure to do so may mean the insurer will not have any evidence to admit in WCC proceedings. If an insurer disputes that injuries should be aggregated for WPI purposes, the insurer should issue a Notice pursuant to Section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act 1998).
Facts – Walker v Roberts The worker was employed as a care taker on a rural property when, in November 2006, he injured his right shoulder, pulling bails of hay off the back of a utility. This claim was accepted. On 13 April 2007 he suffered an electric shock while connecting a battery charger to a tractor battery, which caused his right arm to be thrown back and he suffered a fracture of his right humerus. This claim was also accepted. The worker’s solicitors organised Dr. Burgess, orthopaedic surgeon, to examine the worker and Dr. Burgess assessed 7% impairment of the right elbow caused by the fracture and 20% impairment of the right shoulder. This converted to 16% whole person impairment. Therefore the worker’s solicitors made a lump sum claim under section 66 and section 67 on 14 July 2008. The insurer replied on 25 July 2008 (i.e. within the statutory two weeks) requesting further particulars, in particular, requesting Dr. Burgess give two separate whole person impairment assessments for each injury. The worker’s solicitors responded, indicating that they believed the pathology was the same for the two separate injuries and therefore Dr. Burgess had correctly assessed the injuries together. The insurer responded again requesting the two injuries be assessed separately on the basis that the injuries represented different pathologies. This request was again ignored and the worker’s solicitors filed an Application to Resolve a Dispute (ARD).
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Relevant Particulars for Lump Sum Claims by Craig Bell
In the Reply the insurer challenged the claim on several bases including: that the injuries represented two distinct pathologies and therefore required separate assessments and could not be accumulated; and that the ARD had been filed without proper justification on the basis that the claim was duly made.
Arbitrator’s Decision The Arbitrator came to the view that the pathology from both incidents was identical and he referred the matter to the Registrar for a single assessment of whole person impairment. It also appears that he did not believe there was any jurisdictional problem with the proceedings despite the request for particulars.
On Appeal Deputy President Roche (DP Roche) dealt with the appeal.
Relevant Particulars On the issue of relevant particulars, the insurer argued that that the lump sum compensation was not duly made. DP Roche criticised this argument on the basis that the expression ‘duly made’ was not used in the Legislation or in the Guidelines. He noted that the real issue was whether or not the lump sum claim was properly particularised and he referred to the appeal decision of Bond Industries Ltd v Borg (2007) NSWWCCPD 80. He noted that case confirmed: 1.
That an insurer has two months from the date the worker provides all relevant particulars about the claim in which to either accept liability, make a reasonable offer, or dispute liability (section 281 of the WIM Act 1998).
2.
Relevant particulars are governed by section 282 of the WIM Act 1998.
3.
Proceedings cannot be commenced for lump sum compensation in the WCC until liability has been denied, or one month has passed after an offer of settlement, or the employer has failed to determine the claim within the time frames.
4.
If the worker fails to supply all relevant particulars, the employer is not obliged to determine liability. This may prevent the worker commencing proceedings in the Commission.
DP Roche noted the employer’s argument that, as the letter of lump sum claim of 14 July 2008 did not identify impairment said to have resulted from the injury in 2006 and said to have resulted from the injury in 2007, the worker had failed to supply all relevant particulars. Accordingly, the argument ran that the insurer was not obliged to determine liability. DP Roche did not accept that submission. He indicated that the purpose of sections 281 and 282 was ‘to enable claims for lump sum compensation to be resolved expeditiously, fairly and without unnecessary expense.’ To that end workers must provide ‘relevant particulars’ about the claim. Those particulars must identify the injury/s and the impairment/s alleged to have resulted from the injury/s. In DP Roche’s view, that was done in this case for the following reasons:
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Particulars about the injury were provided.
2.
Dr. Burgess did provide separate assessments of each injury in terms of impairment of the upper extremities: ‘Dr. Burgess did not merely give a global figure’.
3.
Dr. Burgess gave an opinion that the condition had reached maximum medical impairment.
4.
Dr. Burgess was a suitably qualified specialist trained in the WorkCover guidelines.
Therefore, DP Roche believed that all relevant particulars had been provided to the insurer to enable the insurer to make an assessment of liability. In fact, he found that the insurer did assess liability and decided to dispute that the injuries were to be aggregated. DP Roche therefore concluded that as a dispute had arisen, the matter was properly referred to the Commission for determination.
Aggregation DP Roche indicated that the leading cases on a situation where injuries can be aggregated to one whole person impairment are Department of Juvenile Justice v Edmed (2008) NSWWCCPD 6 and Central West Group Apprentices Limited v Barrett (2008) NSWWCCPD 137. He confirmed that in Edmed’s case it was held that impairments resulting from the same pathology are to be assessed together even though there may be separate incidents. DP Roche concluded, in the current matter, that the injuries represented different pathologies and relied upon the opinion of Dr. Callergos, the worker’s treating orthopaedic surgeon. It was clear that the 2007 incident caused a fracture which was a distinct and separate pathology from the injury to the shoulder (rotator cuff injury) caused by the 2006 injury.
Implications It should be noted that the insurer, because it was adamant that the worker had not provided all relevant particulars, did not organise its own independent medical examination (IME) of the worker to assess whole person impairment. Therefore, ultimately the matter proceeded to the WCC without any evidence on behalf of the insurer as to the extent of whole person impairment. As can be seen by the decision in the case, this was a very risky approach by the insurer as ultimately, the insurer’s argument regarding the relevant particulars failed. In hindsight, the best approach was to write to the worker’s solicitors indicating the objections to the report of Dr. Burgess, but, at the same time, organising an IME. It should be clear now to all insurers that by disputing the assessment of the whole person impairment provided by the worker’s medico-legal doctor, the insurer is in fact creating a dispute for the purposes of sections 281, 282 and 289 of the WIM Act 1998 thereby allowing the worker to proceed to the Commission and incur further legal costs. Obviously the second issue in this matter was confirmation regarding the law of aggregated assessments. It is clear that separate injuries giving rise to separate pathologies cannot be aggregated to one whole person impairment. If the solicitor of the worker maintains that the injuries should be aggregated to one whole person impairment, the insurer should issue a notice pursuant to section 74 of the WIM Act 1998 because aggregation of whole person impairment is a legal issue which should be determined by an arbitrator prior to any referral to an AMS.
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For more information, please contact: Craig Bell Partner T: 02 8257 5737 craig.bell@turkslegal.com.au
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