Foody v W Dick & Co. Removals (NSWWCC 2020)

Key Takeaways

Allegations of conditions consequential to the original injury are very common, particularly with lump sum claims.

It is crucial for insurers to analyse these allegations as the extra body parts claimed may determine whether workers reach important WPI thresholds.

Below, the legal principles involved in determining consequential conditions are emphasised.

Brief Facts

The worker claimed compensation for a right knee injury due to a fall on 18 August 2004. This was accepted by the insurer as was a consequential left shoulder condition.

However, the insurer disputed consequential conditions of the left knee, lumbar spine and cervical spine.

Judgment

Arbitrator Sweeney re-affirmed the legal principles for consequential conditions:

• the worker does not have to prove an injury within the meaning of s4 of the 1987 Act nor does the worker have to prove that employment was a contributing factor to the injury under s9A of the 1987 Act;
• the worker must prove that the symptoms and restrictions result from the initial injury (the right knee);
• this is a question of fact determined on the balance of evidence; and
• what is required is a common sense evaluation of the causal chain between the initial injury and the consequential condition.

The Arbitrator then considered all the evidence including the medical evidence and the worker’s evidence. It is important to note that evidence that is not qualified is not accepted. For example, in this case, the worker thought his lumbar spine pain could be attributed to the fall as he could not think of any other explanation. However, the Arbitrator dismissed this evidence as the worker was not qualified to give such an opinion.

Implications

As the determination of consequential conditions are based on the balance of evidence, it is important for insurers to obtain as much evidence as possible.

Certainly insurers should obtain all clinical notes and medical files of the worker’s treatment providers. Furthermore, all of the relevant evidence and any treating opinions or opinions from medico-legal specialists should be sent to an insurer IME to comment on the validity of the opinions. The IME must give an opinion on whether the consequential condition results from the initial injury.