Glogoski v Workers Compensation Nominal Insurer [2019] NSWDC 154 (3 May 2019)

Summary

Prior to 27 November 2001, a worker could elect to receive lump sum compensation or damages (not both).

In this case, the worker recently applied to the District Court to revoke an election that he made in 2001 to receive lump sum compensation, as he now wanted to pursue a claim for damages.

The worker’s application was unsuccessful. This was despite the fact that the worker sustained an exacerbation of his pain due to a separate incident after making his election.

Background

The worker was employed by Ansett Australia as a freight handler. He sustained an injury to his lumbar spine in February 2000, which required surgery. He then returned to work.

In August 2001 the worker elected to receive lump sum compensation rather than make a claim for damages. This election was required because, at that point in time, Section 151A of the Workers Compensation Act provided that a worker could receive lump sum compensation or damages, not both.

Two months later, in October 2001, the worker sustained an exacerbation of his injury when he assisted a co-worker to lift an item weighing around 65 kilograms. He never returned to work after that incident.

In or around 2018 the worker made an application to revoke his election so that he could pursue a work injury damages claim. In order for that application to be successful, the worker had to satisfy the Court that, at the time of the election, a reasonable person in his position would have had no cause to believe that further deterioration of his medical condition would probably occur.

The worker relied on, amongst other things, an Affdavit in which he swore that at the time he made the election, he had no reason to believe that his condition would deteriorate.

Decision

His Honour Judge Russell SC considered the legislative framework that applied. His Honour noted, importantly, that the worker’s own opinion as to whether his condition would get worse at the time of making the election was irrelevant. His Honour therefore took no account of the worker’s opinion in that regard.

His Honour accordingly focused his decision on the medical opinion expressed by various medical practitioners around the time of the worker making the election. His Honour noted, amongst other things, that:

1. No doctor suggested that the worker’s condition would improve.
2. All doctors considered the worker to be permanently unfit for heavy work, and that he should not perform such work.
3. In October 2001 the worker was doing work involving heavy lifting even though he was under medical advice not to do so.
4. One doctor had noted the potential for an increase in impairment to the back and both legs.

In view of the above evidence, His Honour held that a reasonable person in the worker’s position would have had reasonable cause to believe that further deterioration would probably occur.

In the circumstances, the worker failed to discharge his onus, and his application to revoke his election was unsuccessful.

Conclusion

If a claim for damages is received as a result of an injury that occurred between 30 June 1987 and 27 November 2001, check to see if lump sum compensation was paid prior to 27 November 2001. If it was, this means that the worker made an ‘election’. The worker accordingly cannot recover damages for that injury unless they apply to the Court to have the election revoked.

The Court will pay close attention to the medical evidence that was available to the worker at the time of making the election when determining whether leave will be granted for the election to be revoked.