Pre-Existing Conditions and Whole Person Impairment: Key Lessons from Walton v State of New South Wales

Don Cameron & Associates assists injured workers who are facing disputes about whole person impairment assessments. Often a person will injure themself in the workplace and a confronted by an argument from the insurer and their employer that part of their impairment is due to a pre-existing condition. Often an insurer’s medical assessor or a Medical Assessor or a Medical Appeal Panel appointed by the Personal Injury Commission will reduce an impairment rating by applying a deduction for a pre-existing condition.

In the recent Supreme Court case of Walton v State of New South Wales, the worker, an enrolled nurse, slipped on a hospital floor, injured her knee and twisted her back, and later underwent a whole person impairment assessment for ongoing thoracic spine pain, knee injury and scarring. Although the original assessor assessed her at 15% whole person impairment, the Personal Injury Commission Appeal Panel reduced that figure to 14% after applying a 10% deduction for alleged pre-existing degeneration in the thoracic spine.

The NSW Supreme Court held that the Personal Injury Commission Appeal Panel had not properly applied the legal test under s323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), confirming that a pre-existing condition cannot justify a deduction unless it is shown to have made the worker’s impairment greater than it otherwise would have been.

For injured workers, the case shows how even a small change in impairment can have major consequences for entitlements, and that it is vitally important to obtain experienced legal advice where a whole person impairment assessment is in dispute.

The team of experienced and expert work injury lawyers at Don Cameron & Associates can assist you in your whole person impairment dispute.