Darryl Nelson v Arrium Limited (formerly known as
Onesteel Limited)  VSC 488
A Supreme Court decision handed down by Justice Zammit on 14
September 2015 will prevent Victorian workers from double dipping
for physical impairment benefits claims in the event of total loss
Arrium Limited, the successful Respondent, was represented by
Sparke Helmore Lawyers.
Mr Nelson was employed by Arrium as a machine operator/forklift
driver. On 29 June 2009, Mr Nelson suffered a crush injury to his
right hand during the course of his employment. A section of his
right ring finger was amputated, resulting in a total loss injury.
Mr Nelson also suffered permanent impairment of his right hand,
including reduced grip strength and reduced range of movement.
Mr Nelson lodged an impairment benefits claim on 21 November
2012 seeking lump sum compensation for permanent impairment
pursuant to ss 98C and 98E of the Accident Compensation Act
1985 (Vic) for claimed impairments to the right ring finger,
right hand and scarring.
After an independent assessment, Arrium accepted liability for
injuries to Mr Nelson's right ring finger, right hand and
scarring. The impairment assessment was ultimately referred to a
Medical Panel for determination.
Medical Panel Determination
The Medical Panel assessed Mr Nelson with:
8% whole person impairment (WPI) of the right hand including
scarring (excluding total loss), which equated to a 10.6% modified
WPI and a $15,488 entitlement
11% WPI of the right ring finger including scarring (including
total loss), which equated to a 11.95% modified WPI and a $21,356
a "total loss of two joints of the little or right finger
of either hand" under s 98E, which equated to a $21,350
A Notice of Entitlement was issued by Arrium providing for an
11% WPI (modified to 11.95%) and a $21,356 entitlement pursuant to
s 98C. That entitlement was conveyed as it was higher than the
total loss figure of $21,350 that would otherwise have been
available under s 98E.
Magistrates' Court of Victoria proceedings
Mr Nelson disputed the calculation of entitlement and issued
proceedings in the Magistrates' Court of Victoria seeking to
have Arrium's determination set aside. Mr Nelson sought an
award of $21,356 for the total loss injury pursuant to s 98E
and $15,488 for 8% WPI pursuant to 98C for hand
injuries (excluding the total loss).
Magistrate Maclean held that Mr Nelson was not entitled to
compensation awards under both ss 98C and 98E. Her Honour held that
Arrium's determination was correct and Mr Nelson was entitled
only to the greater of the two amounts.
Supreme Court of Victoria appeal
Mr Nelson appealed Magistrate Maclean's decision to the
Supreme Court of Victoria, claiming entitlement to compensation for
total loss under s 98E and whole person impairment under s 98C. The
Appeal was heard before Justice Zammit on 4 September 2015.
Justice Zammit held that ss 98C and 98E considered alone or
together did not require or permit the total loss injury and hand
injury to be assessed separately. Her Honour held that the correct
WPI figure for the calculation of compensation was 11% under s 98C
The Court found that it was not open to interpret s 98E as
altering the way that compensation is calculated under s 98C in
circumstances where there is a total loss injury and a non-total
loss injury occurring from the same event or circumstance. Her
Honour concluded that Mr Nelson was not entitled to be compensated
under both s 98C and s 98E.
This decision precludes double dipping for physical impairment
benefits claims in the event of total loss injuries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).