Darryl Nelson v Arrium Limited (formerly known as Onesteel Limited) [2015] VSC 488

A Supreme Court decision handed down by Justice Zammit on 14 September 2015 will prevent Victorian workers from double dipping for physical impairment benefits claims in the event of total loss injuries.

Arrium Limited, the successful Respondent, was represented by Sparke Helmore Lawyers.

Background

Mr Nelson was employed by Arrium as a machine operator/forklift driver. On 29 June 2009, Mr Nelson suffered a crush injury to his right hand during the course of his employment. A section of his right ring finger was amputated, resulting in a total loss injury. Mr Nelson also suffered permanent impairment of his right hand, including reduced grip strength and reduced range of movement.

Mr Nelson lodged an impairment benefits claim on 21 November 2012 seeking lump sum compensation for permanent impairment pursuant to ss 98C and 98E of the Accident Compensation Act 1985 (Vic) for claimed impairments to the right ring finger, right hand and scarring.

After an independent assessment, Arrium accepted liability for injuries to Mr Nelson's right ring finger, right hand and scarring. The impairment assessment was ultimately referred to a Medical Panel for determination.

Medical Panel Determination

The Medical Panel assessed Mr Nelson with:

  • 8% whole person impairment (WPI) of the right hand including scarring (excluding total loss), which equated to a 10.6% modified WPI and a $15,488 entitlement
  • 11% WPI of the right ring finger including scarring (including total loss), which equated to a 11.95% modified WPI and a $21,356 entitlement, and
  • a "total loss of two joints of the little or right finger of either hand" under s 98E, which equated to a $21,350 entitlement.

A Notice of Entitlement was issued by Arrium providing for an 11% WPI (modified to 11.95%) and a $21,356 entitlement pursuant to s 98C. That entitlement was conveyed as it was higher than the total loss figure of $21,350 that would otherwise have been available under s 98E.

Magistrates' Court of Victoria proceedings

Mr Nelson disputed the calculation of entitlement and issued proceedings in the Magistrates' Court of Victoria seeking to have Arrium's determination set aside. Mr Nelson sought an award of $21,356 for the total loss injury pursuant to s 98E and $15,488 for 8% WPI pursuant to 98C for hand injuries (excluding the total loss).

Magistrate Maclean held that Mr Nelson was not entitled to compensation awards under both ss 98C and 98E. Her Honour held that Arrium's determination was correct and Mr Nelson was entitled only to the greater of the two amounts.

Supreme Court of Victoria appeal

Mr Nelson appealed Magistrate Maclean's decision to the Supreme Court of Victoria, claiming entitlement to compensation for total loss under s 98E and whole person impairment under s 98C.  The Appeal was heard before Justice Zammit on 4 September 2015.

Justice Zammit held that ss 98C and 98E considered alone or together did not require or permit the total loss injury and hand injury to be assessed separately. Her Honour held that the correct WPI figure for the calculation of compensation was 11% under s 98C only.

The Court found that it was not open to interpret s 98E as altering the way that compensation is calculated under s 98C in circumstances where there is a total loss injury and a non-total loss injury occurring from the same event or circumstance. Her Honour concluded that Mr Nelson was not entitled to be compensated under both s 98C and s 98E.

This decision precludes double dipping for physical impairment benefits claims in the event of total loss injuries.

We would like to acknowledge the contribution of Jenna Forbes to this article.