GN 2.7 Consequential loss
Application: This guidance applies to exempt workers
Overview
Consequential conditions are common in workers compensation and can have a significant impact on a worker’s entitlements. It is important that prompt and proactive consideration is given to any additional or consequential conditions that are identified on a certificate of capacity or otherwise.
This guidance note explains consequential conditions and their significance in workers compensation.
What are consequential conditions?
The Personal Injury Commission (the Commission) has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury, that is a consequential condition, in numerous decisions.
In considering the difference between an ‘injury’ and a condition that has resulted from an injury, the Commission has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
A medical condition that has resulted from a previous compensable injury is a consequential condition.
The fact that the worker in Kooragang died from a heart attack does not mean that the heart attack was an ‘injury’ (within the meaning of section 4 of the 1987 Act). It means that, on the facts of that case, there was an unbroken chain of causation between the back injury (the compensable injury) and the death. In other words, the heart attack (and death) resulted from the back injury.
It is important to understand the difference between an ‘injury’ arising out of or in the course of employment under section 4 of the 1987 Act on the one hand, and a medical condition that has resulted from an injury, in the sense discussed in Kooragang on the other. The two are separate and distinct.
Section 9A of the 1987 Act does not apply where it was alleged that symptoms in one part of the body resulted from an injury to another. A worker is only required to establish that the consequential condition resulted from the primary injury.
An insurer will need to obtain and consider factual and medical evidence to determine whether there is a connection between the primary injury and the consequential condition.
An insurer should not allege that the notice and claim provisions have not been complied with in relation to a consequential condition if the provisions have already been met in relation to the primary injury.
It is not uncommon for workers to bring claims for compensation for a consequential loss, that is, a loss or impairment that has resulted from the previous compensable injury. Such matters regularly involve a chain of causation in which a relevant work-related injury causes a chain of events, ultimately resulting in the consequential condition.
In Trustees for the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23, the Commission considered a claim for a consequential condition.
Why are consequential conditions important?
Acceptance of a consequential condition(s) can impact a worker’s claim in a number of ways. This includes access to reasonably necessary treatment for the condition and the impact on any assessment of degree of permanent impairment (which in turn may impact other entitlements under the Acts and at common law).
A worker’s degree of permanent impairment is used to determine access to common law rights, commutation, permanent impairment compensation payments (section 66 payments), extended weekly payments, as well as medical and other related costs. Refer to Insurer guidance GN 5.7 Permanent impairment for more information.
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