When is an injury not an injury?

Hicksons was recently successful in a Presidential Appeal in the Workers Compensation Commission, confirming that Arbitrators need to determine “the nature of an injury”.  Why does this matter?  For quite a few reasons, actually.

Key points:
  • The Commission confirmed that, if an insurer puts the nature of an injury in dispute, this is a liability issue that needs to be determined by an Arbitrator.
  • The nature of an injury is directly relevant to what surgery might, or might not, be reasonably necessary. It can also be directly relevant to what level of impairment a worker suffers. It may eventually be relevant to whether a worker can pursue a claim for damages. 
  • It is incumbent on an insurer to correctly assess liability not only for the preliminary injury reported, but also for any consequential injury subsequently claimed as being work related. This means clearly identifying the incident which caused the injury and the nature of the injury.
  • The SIRA standards of practice[1]  require insurers to assess any additional or consequential conditions notified on an existing claim, and to make liability decisions in respect of them.
A recent matter in the Workers Compensation Commission[2] involved a worker who had suffered a fall and injured his left knee on 26 June 2007. The incident itself was never in dispute. The insurer accepted he had suffered a muscle strain. However, years later he made a claim for the cost of knee replacement surgery, alleging that he had suffered an aggravation of pre-existing degenerative changes.  The insurer disputed that later allegation. 
The Arbitrator had initially determined it was unnecessary to make a finding on what the injury was. He was broadly satisfied there was an injury to the left knee on 26 June 2007, and felt that was enough. Hicksons appealed, arguing this was an error of law. While there was no dispute a fall occurred at work, there had been a clear dispute raised about what actual pathology/injury the worker suffered in that incident.
The Presidential Member agreed. DP Wood confirmed that if the “nature of an injury” is an issue that has been in dispute, it is a liability issue that an Arbitrator needs to determine.  Failure to determine that issue was an error of law.
That finding is particularly relevant, and arises more commonly than you might think. 

For example, many claims might start as a ‘muscle strain’, or ‘back pain’, or a ‘rolled ankle’. There may be no dispute that injury was work related. However, some time after that reported injury (sometimes many years) doctors may start to provide alternate diagnoses, such as a “disc prolapse”, or “L2/3 and L3/4 disc degeneration” or “avascular necrosis”[3]. The insurer must undertake a proper review of whether the “nature of the injury” that was initially accepted is the same as the one now causing incapacity, need for treatment or further impairment.
It may be that a doctor is now telling a worker surgery is needed. If so, there could be a valid medical question of what gives rise to the need for surgery. The medical evidence might show that surgery is due to some other condition that a worker separately suffers, even if it involves the same body part as the injury for which liability was initially accepted.
Alternatively, properly reviewing the nature of the injury suffered at work might confirm it has materially contributed to the need for surgery. Liability for that surgery, even though also related to a pre-existing condition, should in such a matter be accepted[4].
Raising this liability issue in a dispute based on proper evidence is consistent with the SIRA Standards of Practice[5].  When consequential or additional conditions are added to an existing claim, an insurer is required under the Standards to identify any new allegations that are contained in the medical certificate, obtain proper evidence and issue a liability determination. 
Accordingly if a doctor starts to change a diagnosis from muscle strain, or back pain, to “aggravation of the L4/5 degenerative changes”, it is both appropriate and necessary to assess liability for that change.  Doing so may have significant consequences.  A mere muscle strain would seem unlikely to result in any substantial impairment, and hopefully the worker could be quickly returned to work.   
However a severe aggravation of degenerative changes may require surgery. If the medical evidence suggests surgery is reasonably necessary as a result of the work injury, that should be paid to try and assist the worker to return to health. If, however, they are unable to improve, they may be left with more than 15% WPI and may pursue a claim for damages in future.
Therefore, identifying "the nature of an injury” is crucial to ensuring that appropriate compensation is paid for the work injury, but only for the work injury.

[1] See Standard 13, Additional or consequential medical conditions, found here
[2] Dywidag Systems International Pty Ltd v Melksham [2020] NSWWCCPD 41
[3] These diagnoses are all ones that Hicksons has seen on claims they have been instructed to advise on
[4] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49
[5] See Standard 13, Additional or consequential medical conditions, found here

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