Section 70 of the Return to Work Act (Act) provides benefits in respect of whole person permanent impairment.
In Woods v Northern Territory of Australia [2023] NTWHC 08:
- The worker had an accepted 2017 mental injury and a disputed 2020 mental injury.
- On 24 August 2020 the worker served the employer with a permanent impairment assessment report of Dr Taykar in which he opined a whole person impairment: 11% in respect of the 2017 injury; and 11% in respect of the 2020 injury.
- A reassessment of the worker’s whole person impairment for the 2017 injury was 5% and 12% for the 2020 injury. The employer ignored the assessment in respect of the 2020 injury as liability was disputed.
- The employer paid the worker’s entitlement of 5% in respect of the 2017 injury.
- The employer later accepted liability for the 2020 mental injury.
- A further report of Dr Takyar was obtained by the worker in which he assessed whole person impairment for the 2017 injury at 9% and the 2020 injury at 13%.
- The employer paid the worker’s entitlement of 13% in respect of the 2020 injury.
The worker made application to the Court contending, among other things, that her entitlement in respect of whole person impairment was 22% (11% plus 11%). The employer disputed same.
The worker submitted that permanent impairment compensation is founded upon “impairment”, not “injury”, and it was irrelevant that the permanent impairment suffered by the worker was caused by two separate injuries because both injuries occurred in the course of the employment with the same employer. Acting Judge Murphy dismissed the worker’s application.
The worker appealed to the Supreme Court. Justice Riley delivered his decision (Woods v Northern Territory of Australia [2024] NTSC 35) on 26 April 2023, dismissing the worker’s appeal. He said “Whether one impairment or more than one impairment arose out of two or more incidents considered in a medical sense, the legislative provisions applicable for the purposes of calculating compensation requires that the matter proceed in accordance with the act and Guidelines. That is what occurred on the present case.….I see no error in the procedures adopted and payment was made in accordance with the terms of the Act.”
Justice Riley went on to refer to an anomaly in the legislative regime. He said “had the appellant suffered that level of impairment [22%} arising out of one injury in the course of her employment her compensation would have been significantly greater than is the case where she has the same level of permanent impairment caused by two injuries.”
Learnings
The introduction of a cap on weekly benefits of 260 in the event of a whole person impairment of less than 15% has created ingenuity.
Fortunately, common sense has prevailed on two occasions.
