The NSW Court of Appeal has found that there is no entitlement to permanent impairment compensation under section 66 of the Workers Compensation Act 1987 (NSW) (the Act) where a workplace injury is so serious that death ‘inevitably’ follows.
On 9 September 2014, Mr Messenger was crushed by the excavator that he was operating in the course of his employment. Unfortunately, he never regained consciousness and died within a few minutes.
Mr Messenger’s dependents were paid a lump sum death benefit pursuant to section 25 of the Act and funeral expenses under section 26.
In 2015, the Estate lodged a claim under section 66 seeking permanent impairment compensation for Mr Messenger’s injuries.
The matter was referred to an Approved Medical Specialist (AMS) who initially assessed 100% permanent impairment. However, the decision was reconsidered at the request of the employer and the AMS concluded that the injuries suffered by Mr Messenger were not permanent because death was inevitable within a short time frame after the injury. The AMS therefore re-assessed 0% permanent impairment.
In 2017, the Estate lodged an appeal against the decision of the AMS. The Medical Appeal Panel (MAP) found that Mr Messenger’s injuries would likely have been with him for the rest of his life and a further certificate was issued assessing the degree of impairment at 100%.
The employer appealed the decision of the MAP arguing that the term ‘permanent impairment’ had been misconstrued. However, Justice Schmidt dismissed the appeal, commenting that:
 “The legislative scheme is concerned with those who are injured at work. When a worker suffers an injury which causes an impairment so serious that he or she cannot recover from it, even with treatment, there is a permanent impairment.”
NSW Court of Appeal
The employer appealed the decision of the Supreme Court. The appeal was heard before Basten JA, Gleeson JA, Payne JA, Sackville AJA and Simpson AJA who unanimously found that there is no entitlement to permanent impairment compensation under section 66 of the Act if death follows shortly after the injury.
What does ‘permanent impairment’ mean?
It was relevant for their Honours to consider the definition of ‘permanent impairment.’
‘Permanent impairment’ is not defined in the Act or the Workplace Injury Management and Workers Compensation Act 1998.
Their Honours found that the term ‘permanent impairment’ encompasses a temporal element involving some lasting and enduring experience of living. Importantly, permanent impairment does not encompass an impairment resulting from an injury so serious that death inevitably follows within a few minutes.
However, their Honours did not believe it was possible to define the boundaries of when impairment can be considered ‘permanent’ for the purposes of sections 65 and 66. Every case will turn on its facts but their Honours noted some relevant considerations for determining whether an impairment is ‘permanent’ include the length of time the injured person survived the injury (or length of time between injury and death), whether the injured person regained consciousness and the extent to which the person was aware of a reduced quality of life.
This case highlights that the object of section 66 is to compensate an injured worker for a permanent impairment as a result of an injury that involves some diminution in function which is lasting or enduring.
Permanent impairment compensation will not be awarded where death shortly follows from the workplace injury.
If you or somebody you know has suffered an injury during the course of employment, you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 46 8362, or alternatively make an online enquiry.
Written by Sylva Dankha
Sylva Dankha is a solicitor in Anna Tavianatos’ Practice Group. Sylva represents people in a wide variety of matters including motor vehicle accidents, workers compensation, work injury damages, TPD, medical negligence and public liability claims.