Effect of the Martin decision on injuries and subsequent surgeries

Since our article in the November 2016 issue of the Impairment Insider (To combine or not to combine?), the Full Bench of the South Australian Employment Tribunal (SAET) has delivered the decision of Martin v ReturnToWorkSA [2016] SAET 95.

The Full Bench was of the view that, provided the medical treatment was made necessary because of the original work injury, short of gross negligence that might break the chain of causation, any adverse consequences of that treatment should be regarded as forming part of the original compensable injury.

What this means for assessors, is that where there are consequences attributable to surgery, which has been performed with due care and skill, this should be regarded as forming part of the original injury. This does not include other treatment, medication usage or other activities or issues. Therefore, from now on, you will be asked in requests from claims agents to only assess the impairment as the worker presents on the day. There will be no need to separate out the original injury and surgeries as you have previously been asked to do. Injuries that occurred on different dates will still be assessed separately.

We recognise that the changing landscape can be frustrating and appreciate your patience while we continue to let developing case law inform the approach to assessment.  The application of this case now simplifies the process and provides consistency with the approach taken in the Return to Work Act 2014.

If you have recently completed assessments where you have been asked to separate the injury from the surgery, you may receive a request from the claims agent for a supplementary report for an assessment of the current level of impairment as the worker presented on the day.

If you have any concerns about a request you receive from a claims agent, please contact the requestor to clarify.

If you would like any further information about the Martin decision, please don’t hesitate to contact the Impairment Assessment team.