Facts

During 2014, Mr Ryan Messenger, the deceased worker, was killed in a workplace accident when an excavator he was operating tipped over and crushed the cabin in which he was located. The deceased suffered severe high force crush injuries to his upper body and died a few minutes later, having not regained consciousness. A claim for ss 25 and 26 death benefits and funeral expenses was submitted on behalf of the estate and liability accepted for those benefits.

In 2015, the executor of the deceased’s estate lodged a claim for permanent impairment compensation under s66 of the Workers Compensation Act 1987 (NSW) (the Act), contending that permanent impairment was suffered by the deceased worker by reason of the high force crush injury shortly prior to his death. A medical dispute regarding the extent of permanent impairment was referred to an Approved Medical Specialist for assessment under s293 of the 1998 Act and in the first instance, an Approved Medical Specialist assessed a 100% permanent impairment.

A reconsideration request was subsequently submitted by the employer under s329 of the 1998 Act. A reconsideration medical assessment certificate was then issued by the Approved Medical Specialist which concluded the deceased had not suffered ‘permanent impairment’.

In 2017, the estate lodged an appeal against the reconsidered medical assessment certificate to a medical appeal panel of the Workers Compensation Commission. The appeal panel found it was highly probable the deceased’s injuries would be with him for the remainder of his life, and consequently, rescinded the reconsidered medical assessment certificate and issued a further certificate assessing the degree of permanent impairment at 100%.

The employer appealed to the NSW Court of Appeal, arguing the appeal panel incorrectly construed the meaning of the term ‘permanent impairment’ where found in ss 65 and 66 of the Act and s322 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Determination

In a decision published today, 16 August 2018, the court (by majority consisting of Payne JA, with Gleeson JA and Sackville JA agreeing) held:

1. The term ‘permanent impairment’ where used in ss 65 and 66 of the Act involves a diminution of function experienced by a worker which is lasting or enduring. There must be some continued and enduring experience of living and the concept does not encompass an impairment resulting from an injury so serious that death will inevitably follow within a short time.
2. The expression ‘permanent impairment’ is not apt to describe the impact of an injury which is incompatible with the continuation of life and where the victim survives for a very short period, measured in seconds or a few minutes.

Key points to take away

The object of s66 of the 1987 Act is to compensate an injured worker for a persisting permanent impairment resulting from injury which will continue for the worker’s life.

The entitlement is qualified in the sense that not only must the impairment be permanent, but it must result in a diminution of function or loss of enjoyment of life as an ‘experience of living’.

The entitlement does not arise from an injury that is so serious that death will inevitably follow within a short time, measured in seconds or a few minutes.