Can total permanent impairment exist immediately before death?

Key Points
  • For s66 entitlement, impairment must be permanent and assessable.
  • Permanency cannot be established if death is imminent.
  • Pre-conditions relating to maximum medical improvement must be satisfied.

After suffering an horrific accident at work, a person survives for three minutes with debilitating injuries, then dies.

How does this affect a workers compensation claim? Is the estate of the deceased able to claim total permanent impairment?

When a worker’s death is not instant, there are complex financial, medical and legal implications. Ultimately, compensation depends on the degree and stability of impairment. Additionally, the time frame between injury and death, existing health and nature of the injury are crucial to a determination.

In the recent case of Basin Sands Logistic Pty Ltd v Sharon Duskovic, a Medical Appeal Panel dealt with the issue of whether a deceased worker’s estate could claim Section 66 lump sum compensation where the worker’s death was almost instantaneous.

In the course of his employment, David Duskovic was extensively injured in a motor accident that fractured and dislocated his C1 and C2 vertebrae, rendering him unable to breathe.

The Medical Appeal Panel (decision delivered 9 June) conceded Mr Duskovic was not clinically dead until around three minutes after the impact.

However, because his death was almost instantaneous, Section 66 benefits were not payable.

The Panel found firstly, a worker’s impairment must be considered permanent. The Panel accepted that permanency is not established where the worker is certain to die within a short and relatively finite period, which could be a matter of minutes or days (for instance where the worker is maintained on life support pending instructions from relatives).

Secondly, an assessment of the degree of permanent impairment can only be undertaken if the pre-conditions provided for in 1.21 of the 09 Guides or 1.15 of the 16 Guides are made out. It cannot be undertaken if:

  • death happens less than three months before the assessment, or it is likely the worker’s condition will cause death in less than 12 months after the assessment (09 Guides); or
  • The worker’s condition is not well stabilised or is likely to cause death within 12 months from the assessment

There is, however, an absence of clarity around what is meant by well stabilised and what is meant by a person’s condition.

Similar claims pending may assist in providing additional guidance for workers and the compensation scheme: we will report further when these are determined.

Post by Casey Stanwell and John Smidmore 

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