Akram Zahedian v Empire Hospitality Australia Pty Ltd (NSWWCC 2020)

Key Takeaways

When pursuing a claim for a consequential condition, workers need to ensure that they have sufficient evidence in order to demonstrate a causal link between the alleged consequential condition(s) and the original accepted injury/injuries.

In deciding whether to bring a claim for lump sum compensation, workers need to be mindful that, should they subsequently develop a consequential condition for a new body part after claiming and receiving lump sum compensation for originally accepted injuries, the development of the consequential condition is not considered deterioration for the purposes of appealing the original MAC.

Brief Facts

Liability was accepted for the worker’s claim of injuries to multiple body parts including the left knee.
The worker lodged a claim for 26% WPI based on a report of a Dr Dias. In that report, Dr Dias diagnosed a consequential right knee condition due to over-using the right knee to protect the injured left knee however he did not attribute any WPI to the right knee.

The insurer rejected the claim for 26% WPI but offered the worker 14% WPI. The insurer disputed outright the worker’s claim of a consequential right knee condition.

The worker commenced proceedings in the WCC claiming 26% WPI for the accepted injuries and also claimed a consequential right knee condition.

The matter was heard by Arbitrator Phillip Young on 20 July 2020. He identified 2 issues for determination:

• Whether the worker developed a consequential right knee injury due to her accepted left knee injury
• If the worker ultimately proved a consequential right knee injury, whether the right knee could be referred to an AMS for an assessment of WPI despite the fact that the worker’s claim for 26% WPI did not include a component for the right knee.

Judgment

Arbitrator Young was ultimately not satisfied the worker’s right knee condition was consequential to her left knee injury because:

• it was unclear when the worker claimed she began to develop right knee issues;
• the worker continued to work for a number of years without any recorded right knee issues;
• the worker failed to mention right knee issues to her treating specialist until late 2019 despite numerous opportunities to do so before that time;
• the only opinion supporting the claim of a consequential right knee condition was that of Dr Dias and his opinion was based on an examination of the worker some two years after she ceased employment;
• Dr Dias referred to the left knee as normal thus negating the worker’s claimed need to protect it by placing more strain on the right knee; and
• the insurer’s medico-legal expert in April 2020 reported full movement in both knees.

Because the Arbitrator found against the worker with respect to her claim of a consequential right knee condition, he did not need to consider the issue as to whether the worker’s right knee could be referred to an AMS for a WPI assessment given her claim for 26% WPI did not include a component for the right knee. Nevertheless, the Arbitrator elected to make some obiter dicta remarks on the issue. The thrust of those remarks is that the worker could not have had her right knee assessed by an AMS in any event because the right knee did not form part of the original claim for WPI. On this issue, the Arbitrator referred to paragraphs 77 through 82 of DP Roche’s 2016 decision in the matter of O’Callaghan v Energy World Corporation Ltd (NSWWCCPD 2016). The Arbitrator’s decision included the following:

In many cases, consequential conditions can develop over considerable periods of time and this restriction to an AMS (i.e., the body part must be identified in the claim form) may seem somewhat unfair, however, as identified by Arbitrator Harris [in Maria Galea v Colourwise Nursery (NSW) Pty Ltd [2019] (NSWWCC 362 at [52]] (with which I agree) some of the 2012 amendments were described by the High Court [in ADCO Constructions Pty Ltd v Goudappel [2014] (HCA ) 18]] as having a “non-beneficial operation”.

DP Roche endorsed the Arbitrator’s decision. At (83), he stated:

The critical point is that a s327(3)(a) appeal is an appeal against the AMS’s “medical assessment”. In the present case, the AMS made no assessment of Ms O’Callaghan’s cervical spine and, consistent with the authorities applied by the Arbitrator, which are binding on the Commission, there can be no medical appeal with respect to something that the AMS did not assess.

Implications

In order to prove a consequential condition flowing from an accepted injury, a worker will normally need more than a medico-legal expert to succeed. There needs to be sufficient evidence to allow the Arbitrator to draw a causal link between the consequential condition and the original injury.

With respect to claims for WPI, all consequential conditions must be included with the original lump sum compensation claim, otherwise they may not form part of the WPI assessment by an AMS.