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Injury, subsequent

Warwar v Speedy Courier (Aust) PL [2010] NSWWCCPD 92. Roche DP.

The worker relied on Dept Juvenile Justice v Edmed [2008] NSWWCCPD 6, applied in later presidential appeals, to contend the second incident inflicted similar pathology.

Roche DP noted claim and medical evidence distinguishing the incidents’ resultant pathologies, to find that the additional loss to the back injury from the second incident was 1%, and that incident injured other parts uninjured in the initial incident, therefore was not the same injury, under s 322.

On causation of the second incident, the deputy president referred to authorities: Kooragang Cement PL v Bates (1994) 35 NSWLR 452: common sense test; Zinc Corp’n Ltd & Anor v Scarce (1995) 12 NSWCCR 566 at 570: employment nexus; Badawi v Nexon Asia Pacific &c [2009] NSWCA 324; and Sarkis v Summitt Broadway PL [2006] NSWCA 358, where a treatment journey falling injury was held unforeseeable for fund recovery.

The second incident resulted from a stranger’s tort, not the first injury.

State Rail Authority of NSW v Cowles [2010] NSWWCCPD 114. Roche DP.

56. Though Dr Pillemer described the September incidents as “aggravations of his widespread longstanding and marked degenerative problem”, he did not suggest that they caused any new pathology or that the effect of the original injuries with State Rail had ceased. It follows that, consistent with Dr Pillemer’s evidence, Mr Cowles’ problems started with State Rail and, having persisted since then, he would have reached his present level of disability regardless of his employment with Wesley Mission and regardless of the two trivial domestic incidents in September 2006. In all the circumstances, I am comfortably satisfied that the increase in Mr Cowles’ incapacity in September 2006 and the need for his further surgery in 2009 resulted from his injuries with State Rail.

57. Even if it is thought, contrary to my conclusion, that the incidents in September 2006 have made a material contribution to Mr Cowles’ current condition, that does not relieve State Rail of liability. In Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1972] 2 NSWLR 435, Reynolds JA (Hope and Glass JJA agreeing) considered the situation where a worker had an injury with one employer which left him vulnerable to increased disability by the effects of further work with a second employer, and held at 439:

“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.

"It is also not open to doubt that, if a worker receives a disability in the employment of A, and subsequently receives an injury in the employment of B which is causally related to the original disability, it is open to the tribunal to conclude that any incapacity arising after the second injury resulted from the first injury.”

58. The only difference between Cluff and the present matter is that in the present case the 2006 incidents did not happen at work. Nevertheless, the principle is the same and applies to Mr Cowles’ circumstances thus rendering State Rail liable for the consequences of the 1989 and 1991 injuries even if the 2006 incidents have also contributed to his condition.

59. The High Court reached the same conclusion in Conkey & Sons Ltd v Miller [1977] 51 ALJR 583. In that matter, the deceased worker suffered a work caused myocardial infarction in 1974 from which he never fully recovered, though he did return to work. He ceased work in September 1975 and suffered another (non work-related) myocardial infarction on 13 October 1975, from which he died. Barwick CJ, with whom all other members of the Court agreed, said at 585F:

“Thus the effect of the medical evidence I have quoted would seem to be that the work-caused injury to the heart at the time of the first infarction was so great that, there being no recovery, another infarction, no matter what its immediate cause, would most probably, if indeed not certainly, be fatal. In my opinion, such a statement warrants the conclusion that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by [a] work-caused injury.”

50. The High Court applied the above principles in Calman v Commissioner of Police [1999] HCA 60; 73 ALJR 1609 where Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ held (at [38], excluding foot notes):

“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”

Please also see Incapacity>>

Quality Acoustics PL v Singh [2010] NSW WCC MA13. Ms Annemarie Nicholl, Arb, Drs Roger Pillemer & Peter Burke.

The worker was injured in 2001. AMS Bodel assessed losses 15 and 20 per cent respectively for the left and right arms.

The employer complained the consequences of a 2007 domestic shower fall had not been counted.

The panel said report histories noted by the AMS had referred to the shower fall, although the AMS had not specified the incident.

“The Appellant’s submission to the effect that a deduction should be made from these assessments pursuant to s 323 of the 1998 Act is entirely misconceived. There is no legislative provision that allows for a ‘deduction’ in respect of an injury that occurs after the subject injury as referred. S 323 of the 1998 Act and s 68A of the 1987 Act (as applicable to the subject injury in 2001) provide for a deduction only in respect of any previous injury, or any pre-existing abnormality or condition. The incident in the shower in January 2007 is clearly not a previous injury in respect of work injury on 23 October 2001. The date of assessment is not relevant to that issue,” the panel said [27].

Then, “The Panel considers the correct and only way of taking into account the effects of a subsequent injury is clearly indicated at Section 8 paragraph (g) of the MAC, Evaluation of Permanent Impairment. The AMS is there asked to indicate whether there is a further injury subsequent to the subject work injury. The AMS is instructed that, if that subsequent injury has caused any additional impairment, then that impairment should not be included with the assessment of impairment due to the subject work injury. In the present case the AMS has not referred at paragraph 8(g) to the subsequent incident or injury in January 2007. However that oversight can now be corrected by the Panel because it has considered all the relevant evidence and the submissions.” [28]

Instantly there was no evidence of later injurious impairment, nor pre-existing condition.

Later, at [31], “In reaching these conclusions the Panel has applied the principles set out in D’Aleo v Ambulance Service of NSW (1996) 14 NSWCCR 139. In that decision the Court of Appeal made it clear that a pre-existing degenerative condition may be a ‘pre-existing condition’ within the meaning of s 68A of the 1987 Act although asymptomatic prior to the injury, so long as the pre-existing condition was a contributing factor causing permanent impairment. The Court commented that this was clearly the conclusion reached also by Beazley JA in Government Cleaning Services v Ellul (1996) 13 NSWCCR 344.”

The panel noted Cummins v G James Safety Glass PL (1994) 10 NSWCCR 688 per Burke CCJ on differentiating Table and AMA assessments.

MAC confirmed.

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