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Published: 13 November 2012
Author: Michael Burdess

A victory for common sense on defining serious injury - for now

What's in a definition? When serious injury is involved and large compensation payments are at stake, quite a lot.

WorkCover excels at blocking workers who are attempting to have their injury classified as "serious".

Because a serious injury classification opens the door to more substantial benefits, including lump sum payments, the government and the employer put up strong opposition, particularly when there are grey spots in the law that can be exploited.

The finer print on defining serious injury is one of those grey spots. However, a recent court case has cleared up some of the murkiness, to the benefit of workers generally. As long as it isn't appealed.

To understand this important win, you need to understand the problem.

When we apply for a serious injury certificate for an injured worker, the Court has to consider whether there is a serious impairment of a "body function". This isn't defined anywhere and usually that isn't a problem. For example, if you injure your back, we claim the "body function" is the spine. Where this does get difficult is when you injure, for example, both of your knees, wrists, shoulders or feet.

Say you develop carpel tunnel in both wrists. Is the "body function" "the wrists"? Or separately, "left wrist" and "right wrist"? Clearly establishing that you have a serious injury to each wrist separately is much more difficult than showing that combined they are serious.

When there is a gap in the legislation, you need to look into what the Courts have said in the past.

There are a few scattered judgements over the years finding support for combining "bilateral" "body function" claims. But there doesn't seem to be any definitive statement yet from Victoria's highest court, the Court of Appeal, which would bind the lower courts that decide these serious injury cases.

A decision in June 2012 in the County Court has given injured workers a leg up.

In the case of Nguyen -v- Aisin Australia Pty Ltd, the judge found that:

"The plaintiff's injury to both shoulders arose in the same work process during the same period and where the plaintiff used both shoulders in manual work. I accept that the injury the plaintiff sustained to her shoulders was to a single body function: namely, her capacity to work in a job that required the use of both shoulders in combination."

In another case, another judge said:

"Manual activity is inter-related: each hand depends on the other hand. I believe as a matter of commonsense and practical assessment, the two hands equal one injury, only compound the seriousness of such."

The courts seem to be more willing to find in the workers favour on this issue if the injures occur at precisely the same time, for example, in a ladder fall. If the injuries occurred over a period of time, perhaps at a differing speed of deterioration, the court will have greater difficulty in accepting the injuries as one "body function".

At this stage, there is no definitive statement, but Ryan Carlisle Thomas will keep arguing the fairer, common sense test for workers. If the issue does make it to the Court of Appeal, you will hear from us again on this issue.

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