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Serious and permanent disablement

Vinidex PL v Campbell [2012] NSWWCCPD 6. Roche DP.

81. The terms of s 14(2) will permit entitlement to benefits if the evidence establishes that the disablement is both serious and permanent. The section is to be applied to employment situations (per Jacobs JA, with whom Asprey JA and Taylor AJA agreed) in Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 at 127.

It was further held in Feeney, concerning the term “disablement” that it “would not be correct to insist upon a finding that all capacity for employment had gone except for a mere chance of obtaining special employment of an unusual kind” (at 127).

82. The questions raised by a proper construction and application of s 14 (2) were also addressed by Burke J in Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520 at [78]:

“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”

Coles Myer Logistics P v Lee [2007] NSWWCCPD 141 Roche DP:

"95. The leading cases on serious and permanent disablement are Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401 and Gregson v L & M Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520.

96. In Kuhna the worker suffered multiple abrasions to his elbows, a fractured nose, a fracture of two ribs on the right side, a comminuted fracture of the os calcis and an undisplaced fracture of the left lateral malleolus. As a result of his injuries he was unfit for any work from 4 June 1988 until 14 August 1988. He was permanently unfit for his pre injury work as a miner.

The employer argued on appeal that the proper question was: was the worker seriously and permanently disabled for work generally, not just for his pre injury job. Cripps JA agreed with the employer's submission that 'disablement' in section 14(2) "is to be understood in an employment context' (at 405E).

His Honour added, '... that is to say, it is not sufficient merely to conclude that a worker suffers an impairment'.

On this issue his Honour referred to Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 at 127 where Jacobs JA, in dealing with the same phrase in the Workers Compensation Act 1926, said:

'The condition required under the section now being considered will be satisfied provided there is evidence that the disability was both serious and permanent. In the context it is correct, I think, to apply those words to employment situations, and it seems to me that that is what the medical evidence did in this case.'

97. Cripps JA then continued at 406B:

'In the present case, there was evidence that the worker not only suffered an impairment but that that impairment affected his physical capacity to undertake work. The argument, as I understand it, on behalf of the employer is that the disablement cannot be said to be serious because, before such a finding could be made, it was necessary for the learned trial Judge to consider the whole range of the worker's activity and, it is submitted, that was not done.'

98. That submission was rejected. Cripps JA added that the fact that the worker may have been earning as much as he would have been earning had he remained an underground miner 'did not mandate a conclusion that he had not been seriously and permanently disabled' (at 406G).

99. Mahoney JA agreed with Cripps JA, and added at 402B:

'No doubt the word 'disablement' primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is 'serious', the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.'

100.Gregson concerned the meaning of 'serious and permanent disablement' in section 65(13), though the consideration of the phrase by Judge Burke was strictly obiter. Nevertheless the facts and his Honours comments are instructive.

At [78] his Honour said:

'In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work?

If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant's incapacity and losses before a considered answer to those previous questions is available.'

101. In that case the worker suffered a back injury with consequential back and leg pain. In cross-examination the worker conceded that he could do some suitable light work but could not do his pre injury duties.

There were conflicting diagnoses in the case: Dr Stephenson diagnosing a lumbar strain and Dr Combe diagnosing a 'disc derangement'. The CT scan disclosed 'discal anomalies' (at [83]).

On the question of impairment Dr Stephenson assessed a 10% impairment of the back and Dr Combe a 30% impairment.

In respect of the legs, Dr Stephenson assessed there to be no loss of use of the legs and Dr Combe assessed a 10% loss of use of each leg.

His Honour preferred the evidence of Dr Combe. Having regard to the findings made, his Honour added at [105] that the worker 'certainly falls within' the description 'serious and permanent disablement' in section 65(13).

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