Zgouras v Australian Associated Motor Insurer Limited

[2021] NSWPIC 403

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Zgouras v Australian Associated Motor Insurer Limited [2021] NSWPIC 403

APPLICANT:

Katherine Zgouras

RESPONDENT:

Australian Associated Motor Insurer Limited

MEMBER:

Elizabeth Beilby

DATE OF DECISION:

11 October 2021

CATCHWORDS:

WORKERS COMPENSATION - Reconsideration of aggregation; previous whole person impairment payment arising from nature and conditions of employment not frank injury; current claim based on nature and conditions of employment; Held - the matter is remitted to the President to be referred to a Medical Assessor for assessment of the cervical spine (further assessment- scarring) and the lumbar spine.

DETERMINATIONS MADE:

1.     The matter is remitted to the President to be referred to a Medical Assessor for assessment of the cervical spine (further assessment- scarring) and the lumbar spine.

2.     The application and reply are to be provided to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

1. By way of Certificate of Determination in matter no. 7495/2020 it was determined that  Catherine Zgouras (the applicant) suffered an injury to her lumbar spine arising out of the nature and conditions of her employment with Australian Associated Motor Insurer Limited (the respondent). There was an award for the respondent entered in respect of the claim of injury to her thoracic spine also arising out of the nature and conditions of employment.

2. At that time, I, as a decision-maker, was aware that the applicant had proceedings in the Commission on a previous occasion which resulted in agreement in respect of the 33% whole person impairment in respect of the cervical spine. I understood that that impairment arose from a frank injury, or an injury simpliciter, as opposed to the nature and conditions of employment.

3. I therefore did not turn my mind to the issue of aggregation as it did not arise.

4. It has now been brought to my attention that the previous agreement in respect of the cervical spine impairment arose from a claim in respect of the nature and conditions of employment and not injury simpliciter. Therefore, it is entirely appropriate that I reconsider my determination in relation to the aggregation of those two losses.

LEGISLATION

1. Section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:

   “(2)    Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.”

2. This section provides essentially that multiple impairments resulting from the same injury are to be assessed together.

CONSIDERATION

1. The matter was listed for teleconference before me on 24 August 2021. It was at that time that I understood that the prior agreement was based upon the nature and conditions of employment and as such aggregation was a live issue. The parties were directed to file submissions on this issue.

2. The respondent has elected not to put forward any further substantive submissions and simply states that no further submissions should be received in respect of the argument regarding aggregation.

3. Having considered the transcript of the hearing in this matter, it appears that I was not alone in the understanding that the prior agreement was in relation to an injury simpliciter, not the nature and conditions of employment.

4. The error in the assumption that the injury to the cervical spine arose from an injury simpliciter is apparent from the submissions made by the applicant’s counsel which includes the following: “We say that it is clear evidence the nature and conditions of employment rather than the incident in relation to the neck has resulted in problems the applicant has as a result with her thoracic and her lumbar spine”.[1]

   [1] Transcript page 6.

5. This is consistent with the medical opinion of Dr Panjratan, who considers there to be an injury to the cervical spine on 26 June 2003 as opposed to an injury in relation to the nature and conditions of employment.

6. Likewise, Counsel for the respondent also made submissions consistent with the cervical spine being a frank injury. An example of this the following comment “As we know the neck was a frank incident and was compensated accordingly.”[2]

   [2] Transcript page 13.

7. The respondent, in its submissions, does not dispute that the prior agreement was in relation to the nature and conditions of employment, I therefore accept the applicant's assertion in regard to this.

8. Based on the agreement that the applicant’s cervical injury arose from the nature and conditions of employment, that injury having been compensated, and the injury that I have determined arose from the nature and conditions of employment, namely the lumbar spine, it therefore follows that the applicant’s injuries, if they sound in respect of whole person impairment, can be aggregated.

9. The resulting finding necessarily means that the injury must relate to that injury claimed in 2010 and that aggregation of any whole person impairment found by any Medical Assessor will therefore apply to the aggregation of any previously agreed whole person impairment which is subject to a complying agreement.

ORDERS

1. The respondent’s submissions helpfully indicated that the pleaded further loss, that is without including any impairment to the lumbar spine, in fact equates to 34% whole person impairment being 1% higher than the previous assessment of 33% whole person impairment and as such needs to be referred to a Medical Assessor for determination in any event. I understand that this relates to scarring to the cervical spine.  I agree with that assertion.

2. The matter should therefore be referred to a Medical Assessor for assessment of the permanent impairment of the cervical spine (scarring), and the lumbar spine.