25 January 2022
Article from January 2022 edition of INPractice
Have you ever received entitlements under a workers’ compensation claim?
If so, have you had your work injury/s assessed for permanent impairment?
If you have injured yourself at work and your claim was accepted, you may be able to have the injury or injuries assessed for permanent impairment.
If the assessment is 5% or above, you may be entitled to lump payments in addition to any wages and medical expenses already paid for your injury.
The Return to Work Act 2014 (Act) allows injured workers to have their work injuries assessed for permanent impairment. The assessment can only be done when your injuries are stable and have reached what is called maximum medical improvement (MMI).
If you are assessed as suffering a whole personal impairment (WPI) between 5% and 29% you will receive a lump sum compensation for future economic loss and for non-economic loss. The amount you receive will depend on the percentage of impairment as assessed by an accredited medical assessor.
Any lump sum payments are in addition to weekly payments of income support and medical expenses.
If you are assessed as suffering a WPI of 30% or more, you are categorised as Seriously Injured Worker which means you will receive a payment for non-economic loss as well as weekly payments of income support until retirement age and medical expenses for life.
THE ASSESSMENT PROCESS AND COMBINATION OF IMPAIRMENTS
The assessment must be conducted as set out in Section 22 of the Act together with the Return to Work SA Impairment Assessment Guidelines
(IAGs).
You can request that a permanent impairment assessment be arranged and choose any accredited assessor as long as you have not been examined by that doctor before.
You can only have one assessment for injuries arising from the ‘same trauma’. It is essential to ensure that your injury or injuries are stable and that you will not require any surgery before you have the assessment done.
Until recently, there has been significant ambiguity about the interpretation of the Act, in particular circumstances in which multiple impairments can be combined and therefore increasing the overall WPI% and entitlements.
In March 2021 the Full Court of the Supreme Court of Australia handed down a critical decision in the case of Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17, which dealt with the issue of combining impairments.
The Summerfield decision establishes that two or more impairments can be combined where:
1. An injured worker suffers from two or more injuries arising from the ‘same trauma’. For example, if a worker has a fall at work and injures their left knee and their left shoulder, the injuries are deemed to arise from the ‘same trauma’ and therefore any impairments caused from the fall can be combined.
1. The impairments arise from the ‘same injury or cause’. This has been the controversial part of the Act and the focus of the Summerfield decision. In the case of Summerfield, Mr Summerfield injured his left femur and left hip at work and underwent a left hip replacement. Subsequently, he suffered an injury to his lumbar spine as a result of an altered gait, the altered gait being due to his left hip injury. The Court determined that the impairments did arise from the ‘same cause’ and could therefore be combined.
Return to Work SA recently appealed to the High Court of Australia, which was dismissed and therefore the Summerfield decision stands.
The effect of the decision is that multiple impairments that arise from the same incident or as a consequence of a prior injury can be combined. For example, if a worker injures their left knee at work and subsequently sustains an injury to their right knee as a result of overuse, the separate impairments to the left and right knees are said to arise from the ‘same cause’ and should be combined increasing the WPI%.
It is anticipated that due to the impact the Summerfield decision will have, Return to Work SA will push for legislative change to minimise the combination of impairments and entitlements payable to injured workers.
The issue of permanent impairments is complex, particularly in circumstances where you have suffered multiple injuries.
We strongly recommend that you seek legal advice before proceeding with a permanent impairment assessment.
Need legal advice?
Free first appointment.
Contact Union Legal SA
P: 1800 792 834
E:
[email protected] anmfsa.org.au/unionlegal
Union Legal SA provides legal advice and representation ANMF (SA Branch) members and to the general community.
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Click here to read the January 2022 edition of INPractice