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Judge calls into question injury assessment

A Victorian Supreme Court judge has given hope to injured people seeking compensation after he called into question a complex system of injury assessment.

user iconThe New Lawyer 13 April 2010 The Bar
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Justice Beach in the Supreme Court has set a new precedent for the way personal injury impairment is calculated in Victoria, calling into question thousands of injury assessments since 1987.

Doctors have traditionally assessed the percentage of whole body impairment in injury cases, but the judge’s ruling this week puts the Victorian Workcover Authority and Transport Accident Commission insurers on notice, and may involve a revisit of all assessments conducted to date.


The laws covering transport and workplace accidents have required the use of American Medical Association Guide to Permanent Impairment, law firm Maurice Blackburn principal Geraldine Collins said.

“We have been saying for a long time that there is a fairer way to calculate multiple injuries in the event of road trauma or workplace accidents, and now the Supreme Court has agreed that there is jurisdictional error, in this case,” she said.

"The decision puts the Victorian Workcover Authority and Transport Accident Commission insurers on notice. The decision means they should be compelled to revisit all assessments conducted to date and now correctly assess impairment according to the interpretation applied by Justice Beach,” Collins said.

In the firm’s assessment of the case, Nicholls v Corlett & Ors, a man sustained a crushing and degloving injury at work when his hand got caught in a grape harvesting machine. He had compound fractures of the right hand and arm, lost his little finger and has since suffered depression, anxiety and nervous shock. Justice Beach found that the Medical Panel doctors underestimated his level of impairment and this denied him the right to compensation.

An individual has to have a whole body impairment of at least 30 per cent to bring a common law personal injury claim. In this case the injured man was calculated as having only a 29 per cent injury.

The Judge quashed the opinion of the medical panel and disagreed with the method of compounding the individual injuries suffered.

The Judge said the Medical Panel either failed to consider the issue of the way in which different impairment figures should be combined or has misconstrued the AMA Guides as mandating a higher to lowest approach in every case.

Central to the case was “the proper construction and operation of the AMA guides and in particular the way in which multiple different impairments are to be combined so as to arrive at a whole person impairment,” Maurice Blackburn said.

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