There are many cases we come across where people injure themselves at work but have also had previous injuries to that same body part outside of their employment.
So how does this work when it comes to assessing the work injury? Can the injured person still be compensated for the whole person impairment that was as a direct result of the work injury?
This is where Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 comes into play. This section states that “there is to be a deduction for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality.”
In practice this means that when an assessment for whole person impairment is conducted, the person’s entire impairment is assessed first. Then the doctor must make a deduction (if warranted) for any previous/pre-existing injury that has contributed to the overall level of whole person impairment.
But how much deduction is the doctor required to take off for this previous injury?
This is also covered by Section 323, and states that the standard medical deduction for previous injuries is a 1/10th if the extent of the deduction “will be difficult or costly to determine, because for example of the absence of medical evidence.”
What this means is that a doctor can only deduct more than 1/10th off the assessment if there is available and convincing medical evidence to support it. It is for this reason that we find in the majority of cases we deal with, that a 1/10th deduction is the most used practice by doctors assessing whole person impairment.
Let’s now work through an example of what a 1/10th deduction would look like in a real case assessing whole person impairment:
Mr Smith suffers an injury to his left knee at work on 1 March 2020. He had previously injured this knee playing soccer 5 years prior which resulted in him having to undergo an arthroscopy. However, his left knee was feeling good at the time of his workplace accident with a full range of motion.
Unforurnately, Mr Smith’s left knee deteriorated quickly after his work injury and he needed a total knee replacement. Twelve months post surgery Mr Smith goes for his whole person impairment assessment and the doctor assesses him at 20% due to receiving a fair result from the replacement. The doctor then has to consider the impact of the previous soccer injury and takes a 1/10th deduction off this assessment as there is no available medical evidence to support a higher deduction. This leaves Mr Smith with a final whole person assessment of 18% in relation to his injury sustained on 1 March 2020.
However, If the above scenario involved someone who for example, had already underwent a partial knee replacement due to a previous injury and had restricted range of movement in their left knee at the time of the work injury, then the doctor would likely be more inclined to taa larger deduction. If for example, the doctor took a 1/5th deduction this would result in the final impairment being reduced to 16%.
It is important for people to realise that just because you may have had a previous injury to a body part that was reinjured at work, it doesn’t mean that you are not entitled to receive lump sum compensation for that new work injury.
So what should you do if the above scenario applies to you?
Get some advice!
The most important thing that we hope people take away from this blog is that if you have suffered a previous injury but have reinjured the same body part at work, get in touch with an experienced lawyer as soon as possible as you may still be entitled to receive compensation under the NSW workers compensation scheme.
Here at Bourke Legal we have personal injury lawyers that deal with these types of claims on a daily basis. So please pick up the phone and give us or call, or complete an enquiry form on our website and let us help you.