GN 2.7 Consequential loss

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies to exempt workers


Consequential conditions are common in workers compensation and can have a significant impact on a worker’s entitlements. It is important that prompt and proactive consideration is given to any additional or consequential conditions that are identified on a certificate of capacity or otherwise.

This guidance note explains consequential conditions and their significance in workers compensation.

What are consequential conditions?

The Workers Compensation Commission (the Commission) has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury, that is a consequential condition, in numerous decisions.

In considering the difference between an ‘injury’ and a condition that has resulted from an injury, the Commission has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

The worker in Kooragang was a truck driver. He injured his back on 30 July 1981 as a result of climbing up and down from his truck and stopped work in June 1983.

In September 1985, his general practitioner reported that the worker was very distressed because of the delay in reaching a solution to his back difficulty. The worker’s condition deteriorated significantly over a ten-year period - his personality was affected by the ‘chronicity of his condition’.

He reported suicidal thoughts; his back continued to give him excessive pain, radiating down his leg; he had a sudden, unexplained exacerbation of pain in November 1991. A CT scan revealed degenerative disc disease, with a prolapse at L4/5 and significant degeneration at L5/S1. There had been a gross deterioration since the scan taken in April 1982.

On 16 March 1992, the worker received a letter from the insurer advising that compensation payments would cease from 29 March 1992. He saw his doctor in May 1992, severely depressed. He said he did not have enough money to pay the doctor and that he would have to sell his house. He was worried and anxious about his future.

On 8 June 1992, the worker died of a heart attack. The worker’s widow claimed compensation benefits which the insurer denied. She relied on medical evidence that the emotional stress and depression the worker experienced in the weeks leading up to his death, which resulted from the cessation of compensation payments and consequent financial crisis in which he found himself, contributed to his death from a heart attack. Also, that the worker’s sedentary lifestyle due to his back injury and unemployment contributed to the heart attack.

The test of causation in a claim for death benefits under the 1987 Act is the same as in a claim for weekly compensation: if the death ‘results from an injury’, compensation is payable.

The trial judge found that the deceased ‘suffered injury in the course of his employment on 30 July 1981; namely, injury to his lower back’ and that ‘[a]s a result thereof, the deceased suffered myocardial infarction from the effects of which, on 8 June 1992, he died’. The employer appealed.

On appeal, Kirby, P said

... from the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.

He went on to add:

it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.

A medical condition that has resulted from a previous compensable injury is a consequential condition.

The fact that the worker in Kooragang died from a heart attack does not mean that the heart attack was an ‘injury’ (within the meaning of section 4 of the 1987 Act). It means that, on the facts of that case, there was an unbroken chain of causation between the back injury (the compensable injury) and the death. In other words, the heart attack (and death) resulted from the back injury.

It is important to understand the difference between an ‘injury’ arising out of or in the course of employment under section 4 of the 1987 Act on the one hand, and a medical condition that has resulted from an injury, in the sense discussed in Kooragang on the other. The two are separate and distinct.

Section 9A of the 1987 Act does not apply where it was alleged that symptoms in one part of the body resulted from an injury to another. A worker is only required to establish that the consequential condition resulted from the primary injury.

An insurer will need to obtain and consider factual and medical evidence to determine whether there is a connection between the primary injury and the consequential condition.

Factors to consider include the timing of onset of the new complaints, the underlying pathology and diagnosis for the cause of those complaints.

An insurer should not allege that the notice and claim provisions have not been complied with in relation to a consequential condition, if the provisions have already been met in relation to the primary injury.

It is not uncommon for workers to bring claims for compensation for a consequential loss, that is, a loss or impairment that has resulted from the previous compensable injury. Such matters regularly involve a chain of causation in which a relevant work-related injury causes a chain of events, ultimately resulting in the consequential condition.

In Trustees for the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23, the Commission considered a claim for a consequential condition.

Trustees for the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23

The worker in this matter was employed as a teacher from about 2002. She taught various classes including physical education. She taught at a school located next to a main road. She developed problems with her throat and power of speech from around March 2011. She underwent vocal cord augmentation surgery and speech therapy. Ultimately, she was medically retired with the employer accepting liability to pay workers compensation for the speech injury. The worker later claimed consequential conditions involving the cervical spine and shoulders.

In his decision, DP Snell, stated:

There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions … It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of section 4 of the 1987 Act.

Referring to previous decisions of the Commission, he went on to state:

The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.

[at para 169]

Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40

Judge Keating rejected the worker’s claim that injuries sustained in a subsequent fall were caused by the original accepted work injury.

The worker was a tyre fitter and a wheel aligner who sustained an accepted injury to his left shoulder when a car on which he was working rolled causing a dislocation injury to his left shoulder. He underwent left shoulder surgery, following which he became solely reliant on the use of his right shoulder. He later underwent right shoulder surgery.

On 2 July 2017, when alighting from a car, the worker fell and suffered a fractured right clavicle and other associated injuries. The worker alleged that the condition of his right shoulder and the injuries sustained in the fall on 2 July 2017 were consequential conditions on the accepted left shoulder injury sustained on 13 July 2010. He claimed that he sustained the injuries on 2 July 2017 because he did not brace himself for the fall as he was trying to protect his shoulders from further injury.

The Arbitrator found that the fall on 2 July 2017 was not caused by or consequential to the accepted injury to the left shoulder on 13 July 2010 and the right shoulder condition. The Arbitrator found that the injuries suffered by the worker would have occurred had he been in normal health prior to the incident on 2 July 2017. The worker appealed the Arbitrator’s decision.

The appealable issue was whether the injuries sustained in the 2017 incident were a consequence of the original and consequential conditions to the left and right shoulders.

Judge Keating found that the Arbitrator was correct in finding that there was a novus actus interveniens (new intervening act). Mr Andersen’s foot becoming wedged between the car and the gutter caused him to strike his head and fall in an uncontrolled manner. The injuries would have occurred irrespective of any previous injury or condition, and there was no element of aggravation of the earlier injuries to the shoulders.

Ultimately, the burden of proof rests with the worker and the evidence did not show that the previous injuries caused the injuries resulting from the fall in July 2017.

Why are consequential conditions important?

Acceptance of a consequential condition(s) can impact a worker’s claim in a number of ways. This includes access to reasonably necessary treatment for the condition and the impact on any assessment of degree of permanent impairment (which in turn may impact other entitlements under the Acts and at common law).

A worker’s degree of permanent impairment is used to determine access to common law rights, commutation, permanent impairment compensation payments (section 66 payments), extended weekly payments, as well as medical and other related costs. Refer to Insurer guidance GN 5.7 Permanent impairment for more information.