Industry Knowledge.

Kaefer Integrated Services Pty Ltd v Shaun Spohn & NT WorkSafe & Reza Sabetghadam

(The discussion below is for educational and information purposes only. It does not constitute legal advice. Professional legal advice should be sought before taking or not taking any action based on the below)

  1. Permanent Impairment compensation is one of the three primary benefits available to claimants under the Northern Territory Return to Work Act (RTWA) (the other two being weekly compensation and medical / rehabilitation costs).
  2. Permanent impairment compensation is also important for the duration limits in the legislation (i.e., the duration limits do not apply where impairment is assessed at 15% or more WPI (Whole Person Impairment)).
  3. A doctor assesses bodily impairment, and it must be done in accordance with certain medical guidelines (Guides).
  4. When the doctors report setting out the WPI is provided to the claimant or employer, anyone aggrieved can apply to NT WorkSafe (within a strict period of time) to refer it for “reassessment” by a panel of three doctors (one of whom must have specialist knowledge about the particular medical condition) (Panel).
  5. The legislation states the Panel’s WPI assessment is “taken” to be the assessment of permanent impairment and it is “not subject to review”.
  6. What happens when a Panel proceeds to reassess WPI (disagreeing with the initial assessment, in part because of the absence of radiology), submits a written report – and later changes the percentage impairment after someone submits to the Panel additional medical test results? Wasn’t the initial Panel report “final” and “not” subject to review?
  7. In the right circumstances, if the Panel explicitly leaves the door open to consider additional data, then, yes, the Panel can assess impairment in stages and revise its report (upwards or downwards).
  8. This situation happened and in the case of Kaefer Integrated Services Pty Ltd v Shaun Spohn & NT WorkSafe & Reza Sabetghadam (reasons for decision by Justice Brownhill of the NT Supreme Court, Thu, 23 Jun 2022).
  9. Shaun Spohn’s lawyers sent Kaefer a WPI assessment of his right ankle and foot injury of 18% based on an evaluation of 45% impairment of the lower extremity impairment under the Guides. The Employer disputed this and requested a Panel review. The Panel assessed impairment at 4%. To allow something additional for neurological deficit, the Panel indicated it required a nerve conduction study of the ankle and foot.
  10. The claimant obtained a nerve conduction study and provided it to the Panel. The Panel then took that into account. Based on the 4% WPI initially identified, the Panel added 10% WPI for “nerve injury” and 1% for “need for future orthotics’ and assessed at 15% WPI.
  11. The Employer challenged that. It applied to the Supreme Court for “Judicial Review” of the Panel’s further assessment. The Employer argued:
  • the Panel’s initial assessment of 4% WPI was final. The Judge said not so; the Panel explicitly left the door open for further consideration of additional data.
  • it was not given a copy of the nerve conduction study that went to the Panel and accordingly it was denied “procedural fairness”. The Supreme Court disagreed and considered the Employer could see for itself the Panel noted the absence of data, had opportunity to obtain its own information and it failed to take the necessary steps.
  • the Panel’s report did not give sufficient reasons. The Judge disagreed with that, too.
  1. The Employer sent the Panel a “Request for Information”, apparently interrogating the Panel about the further reassessment. The Judge considered the Panel’s reasons were adequate and did not require further explanation. The Judge considered the “Request for Information … was not lawful.”
  2. In reasons for decision of more than 45 pages over 93 paragraphs the Judge dealt with these questions and issues:
  • Is the Initial Reassessment an ‘assessment’ within s 72(4)?
  • Can a reassessment within s 72(4) be reopened or varied?
  • Further Reassessment and procedural fairness; adequacy of reasons; Request for Information; and costs of the reassessments.
  1. This is the latest Court decision on permanent impairment. There are other decisions, including of the NT Court of Appeal in Pengilly (you can claim additional permanent impairment compensation if there is a deterioration in the medical condition) and there are several Work Health Court decisions stemming to 1996, including the decision in Pointon (until compensability is resolved (ie in the case of a dispute of liability), it is normally premature to assess impairment).