Clough Engineering v Thomas

[2004] WASCA 36

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Workers Compensation
2. › Assessment of disability
3. › Psychiatric condition
4. › Meaning of 'permanent' loss of mental capacity
5. › Whether disability continuing indefinitely for foreseeable future
6. › Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(2), s 25, Sch 2 Item 8
1. Workers Compensation
2. › Assessment of disability
3. › Procedure for assessing percentage of disability
4. › Psychiatric disability
5. › Use of AMA Guides and SSA scale
6. › Whether SSA scale ratings can be translated into percentage of disability
7. › Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(2)(a), s 93D(2)(b)
1. Workers Compensation
2. › Right to pursue common law claim
3. › Threshold degree of disability
4. › Whether total disability not less than 30 per cent
5. › Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(3)

Quick Take

A psychiatric disability is 'permanent' for the purposes of s 93D(2) if it is expected to endure indefinitely into the foreseeable future, as opposed to being temporary; a prognosis limited to 2-5 years does not satisfy this test. Where Item 8 of Schedule 2 does not apply, a percentage of psychiatric disability may be derived as a matter of opinion from the criteria in the AMA Guides and SSA scale, notwithstanding that the SSA scale ratings are expressly stated not to be percentages. A direct mathematical conversion of SSA ratings to percentages is impermissible, but an independent assessment informed by the SSA criteria is lawful.