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Review of the application of s322A

  • Newsletter Article
  • Published 14.09.2023

Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork Pty Ltd (NSWPIC 2023)

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Key Takeaways

In this case, Deputy President Snell determined that a worker was precluded from further assessment by a Medical Assessor (MA) for the purposes of satisfying the s39 threshold, due to the application of s322A.

Brief Facts

The worker was employed in the building industry from 1984 by numerous employers over many years. He suffered a number of physical injuries with different employers during that time.

The worker commenced with Lazio in February 2010. He noticed pain in his right knee and back after a particularly heavy job. He ceased his employment with Lazio on 9 April 2010.

The right knee injury was accepted by GIO, as Lazio’s relevant insurer.

The worker brought proceedings against numerous prior employers and Lazio for lump sum compensation. A MAC was issued assessing 13% WPI of the right lower extremity and scarring in relation to the injury sustained with Lazio.

The worker brought subsequent proceedings for weekly benefits against Lazio and a prior employer. A voluntary agreement was entered into.

In April 2022 the worker made a claim for weekly compensation against Lazio based on the MAC assessment of 13% WPI and an assessment by A/Prof Fearnside of 23% WPI of the cervical spine. The worker sought to have impairments assessed together pursuant to s322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

In June 2022 GIO, as insurer for Lazio, disputed the neck injury and any entitlement to weekly payments pursuant to s39. It was not accepted that more than 20% WPI was suffered by the worker from an injury sustained in his employment with Lazio. It was affirmed that the worker had exhausted his one claim for permanent impairment lump sum compensation.

Subsequently, the worker brought proceedings against Lazio for weekly benefits in relation to injuries to the neck, lumbar spine and right lower limb.

Member’s Decision

The Member found that there was insufficient evidence to establish that employment with Lazio had caused a cervical spine injury. An injury to the lumbar spine was considered established.

In relation to s322A the Member noted that on 24 July 2014 the worker withdrew his lump sum clam against Lazio with the AMS referral made only in respect of the back and sexual organs against the three other employers (and not Lazio). The Member determined that the worker had not made any claim in the sense of s66(1A) for permanent impairment as a result of any back injury with Lazio and there had been no assessment of injury in the worker’s employment with Lazio. The worker had already been assessed in respect of his right lower extremity injury but was not precluded from assessment of WPI in respect of the back with a deemed date of injury of 10 April 2010.

An appeal against the Member’s findings was brought by Lazio and then by the worker, on different grounds.

Decision of Deputy President

The DP found that it was an established fact, contrary to the Member’s findings at (63) of the reasons, Dr Burns had previously assessed the worker’s permanent impairment from a ‘disease’ injury involving his work duties up to 9 April 2010. The DP noted that the Member failed to address the argument that an assessment of permanent impairment had already been made and represented the ‘one assessment’ the worker was entitled to and was consistent with the previous MAC dated 24 February 2015.

In relation to s322A, DP Snell made reference to the case of Merchant and the comments made by Keating P as follows:

The limitation on the number of assessments in s322A applies to ‘any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury…’ (s322A(2) (emphasis added). Whilst the matters referred to by Mr McManamey are certainly included as matters to which the limitations applies, the sub-section expressly applies to any further assessment.

DP Snell agreed with the views of Keating P in Merchant in dealing with s322A. He considered that the dispute in the matter constituted a ‘medical dispute’ in reference to s322A(3).

The worker was therefore precluded by s322A from obtaining a further referral to a MA and his application for weekly benefits did not succeed due to the operation of s39 of the Workers Compensation Act 1987.


Section 322A of the 1998 Act should be included in dispute of claims for further assessment of WPI for threshold purposes relating to the continuing payment of weekly benefits. In particular, issues can be taken where a subsequent assessment by an MA is sought if a previous MAC has been issued in relation to an injury (in this case a disease injury, despite the fact that not all body parts pleaded had been assessed as part of the previous MAC).