Bell v The Mining Pty Ltd
[2024] NSWPICPD 35
•17 June 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Bell v The Mining Pty Ltd [2024] NSWPICPD 35 |
APPELLANT: | Bradley Bell |
RESPONDENT: | The Mining Pty Ltd |
INSURER: | icare Workers Insurance |
FILE NUMBER: | A1-W2782/23 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 17 June 2024 |
ORDERS MADE ON APPEAL: | 1. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to appeal against an interlocutory decision. 2. The Member’s Certificate of Determination dated 21 June 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – section 352(3) of the 1998 Act – satisfaction of the monetary threshold – Grimson v Integral Energy [2003] NSWWCCPD 29; section 352(3A) of the 1998 Act – leave to appeal an interlocutory decision; sections 65 and 65A of the Workers Compensation Act 1987 and section 322 of the 1998 Act – aggregation of permanent impairment in respect of psychological and physical injury – Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288; Galluzzo v Little [2013] NSWCA 116; Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 – statutory construction – Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; R v Tannous [2012] NSWCCA 243; Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881; 75 NSWLR 482 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr W Carney, counsel | |
| Law Partners Personal Injury Lawyers | |
| Respondent: | |
| Mr A J Parker, counsel | |
| Lee Legal Group | |
DECISION UNDER APPEAL: | Bell v The Mining Pty Ltd [2023] NSWPIC 295 |
MEMBER: | Ms R Homan |
DATE OF MEMBER’S DECISION: | 21 June 2023 |
INTRODUCTION AND BACKGROUND
Bradley Bell (the appellant/the worker) worked full-time as a truck operator for The Mining Pty Ltd (the respondent/the employer) from about March 2017. On 3 July 2021 he was asked to perform a welfare check on another employee who was his friend, and who had been off work for “a few days” due to sickness. The worker attended the motel where the other employee resided and, when the other man did not respond to knocking, the worker entered the room with a key he was given by motel staff. He found his colleague dead on the floor, from natural causes. The appellant developed problems as he worked on. He experienced sleep difficulties, low mood and anxiety. He came under the care of a general practitioner. He ceased work about two weeks after the incident. He put on weight. There were episodes of binge drinking. He came under the care of a psychologist, a psychiatrist and a nutritionist; he commenced on antidepressants. In late August 2022 he was diagnosed with type 2 diabetes.[1]
[1] Appellant’s statement 20/03/23, [6], [10]–[25], Application to Resolve a Dispute (ARD), pp 1–4.
On 18 July 2022 the worker made a claim on icare (the insurer) for lump sum compensation in respect of 19 per cent permanent impairment in respect of his psychological injury.[2] The insurer responded to this, through its solicitors, on 23 November 2022, making a “nil offer of settlement”.[3] On 20 December 2022 the worker made a further claim, in respect of 23 per cent permanent impairment,[4] relying on reports from Dr Khan (psychiatrist)[5] and Dr Thornley (endocrinologist).[6] This was denied by the insurer in a s 78 notice dated 16 March 2023.[7] The insurer denied that the worker’s impairment satisfied the thresholds in ss 66(1) and 65A of the Workers Compensation Act 1987 (the 1987 Act). It relied on medical reports from Dr Bisht,[8] psychiatrist and Dr Carter,[9] endocrinologist.
[2] ARD, p 26.
[3] ARD, p 27.
[4] ARD, pp 28–29.
[5] ARD, pp 36–45.
[6] ARD, pp 55–63.
[7] ARD, pp 30–34.
[8] Reply to Application to Resolve a Dispute (reply), pp 1–9.
[9] Reply, pp 11–16.
The worker lodged his ARD on 18 April 2023. Dr Thornley, in the worker’s case, assessed 8 per cent whole person impairment in respect of type 2 diabetes mellitus, which he reduced to 5 per cent after taking account of a four tenths reduction for pre-existing factors.[10] This was combined with 19 per cent whole person impairment assessed by Dr Khan, resulting from the psychological injury. The claim brought was for 23 per cent permanent impairment, involving psychiatric and psychological disorders, and the endocrine system. The appellant’s claim was pursued on the basis that the claims, in respect of psychiatric injury and the consequential physical condition, could be combined. The respondent argued the two assessments could not be aggregated.
[10] ARD, p 63.
The matter was listed for hearing on 20 June 2023. The hearing was conducted remotely on an audio-visual platform. Mr Carney, counsel, appeared for the appellant and Mr Parker, counsel, appeared for the respondent. Both counsel addressed and the Member reserved her decision. The Commission issued a decision dated 21 June 2023, accompanied by the Member’s reasons.[11] She concluded that the impairment resulting from the primary psychological injury could not be aggregated with the impairment resulting from the “consequential endocrinological condition”. The claim for the consequential endocrinological condition was “below the threshold and … not capable of referral to a Medical Assessor” for assessment. The matter was remitted for referral to a Medical Assessor, to assess whole person impairment in respect of the psychological injury.
[11] Bell v The Mining Pty Ltd [2023] NSWPIC 295 (the reasons).
The Certificate of Determination was in the following Terms:
“The Commission determines:
1. Pursuant to s 65A(4) of the Workers Compensation Act 1987, permanent impairment resulting from the primary psychological injury cannot be aggregated with any permanent impairment resulting from the consequential endocrinological condition.
2. The claim for permanent impairment compensation for the consequential endocrinological condition is below the threshold and is not capable of referral to a Medical Assessor.
3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 3 July 2021
Body system: Psychological
Method: Whole person impairment
4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.
A brief statement is attached setting out the Commission's reasons for the determination.”
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant’s appeal application has marked the box indicating that the appeal cannot be “decided solely on the basis of the written application and any notice of opposition lodged”. The appellant’s written material does not give an indication of why this is submitted to be so. The respondent’s Notice of Opposition submits the appeal can be decided solely on the basis of the written material. The reasons at [11] describe two issues, whether permanent impairment resulting from the consequential physical condition can be aggregated with impairment resulting from primary psychological injury; if so, whether the consequential physical impairment be referred to a Medical Assessor. Both parties have made submissions on appeal dealing with these confined issues. The appellant gives no indication of why an oral hearing would be appropriate. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
The Commission issued a Direction to the parties dated 27 July 2023 in the following terms:
“1. On or before 4.30 pm on 10 August 2023, the appellant is to file and serve:
(a) submissions:
(i)addressing whether or not the appeal is against an interlocutory decision, and if so, whether the appellant seeks leave to appeal an interlocutory decision, and
(ii)that contain full details of the monetary amount at issue on the appeal with respect to whether the threshold to appeal in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been met, and
(b) any supplementary submissions it wishes to make in respect of the transcript.
2. Any submissions by the respondent in respect of the transcript must be lodged with the Commission and served on all other parties together with the Notice of Opposition, within the timeframes provided for by the President’s Direction of 18 July 2023.”
The appellant’s counsel made further written submissions dated 8 August 2023, responding to the above Direction. The appellant submitted the decision was interlocutory as it did not finally determine the appellant’s right to compensation pursuant to s 66 of the 1987 Act. It submitted the matter raised an important question of law that “needs to be decided”. It submitted the outcome could affect rights under ss 39, 59, 60 and 151 of the 1987 Act. Dealing with the monetary threshold, the appellant submitted a further 5 per cent whole person permanent impairment (lifting the impairment from 19 per cent to 23 per cent when the figures are combined) would increase the appellant’s entitlement by $12,890, well in excess of the monetary threshold.
The respondent’s Notice of Opposition was lodged on 22 August 2023. It accepted that the decision was interlocutory and consented to leave being granted. It remains necessary that the Commission, before granting leave pursuant to s 352(3A) of the 1998 Act, be satisfied that determination of the appeal is “necessary or desirable for the proper or effective determination of the dispute”. The respondent’s solicitors, on 13 September 2023, forwarded an email to the Commission (the appellant’s solicitors were copied in) enclosing a decision of Member Whiffin dated 1 September 2023, Judge v Workforce International (Office Services) Pty Ltd.[12] The respondent requested that the decision be provided to the relevant Presidential Member. On the same date the respondent’s solicitors (again copying in the appellant’s solicitors) said there were “a number of first instance decisions dealing with this very issue”, and that “the Appeal should be allocated and heard as soon as possible”. It said if there was any objection by the appellant, “the Respondent is content to leave this issue to the Divisional Head to determine”.
[12] [2023] NSWPIC 440 (Judge).
The relevant Division Head has no role in the allocation of Presidential appeals.
The monetary restriction on Presidential appeals is found in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
No monetary award was made in the decision under appeal. In Grimson v Integral Energy Fleming DP, dealing with the application of s 352(3), said:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘... amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the Applicant.”[13] (emphasis in original)
[13] [2003] NSWWCCPD 29, [30].
In NSW Department of Education and Communities v Colefax Keating P described the above as having “been consistently applied in the Commission”.[14] The appellant’s calculation of the compensation at issue is not challenged by the respondent. I accept that the threshold as to quantum in s 352(3) of the 1998 Act is met. It is undisputed that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met.
[14] [2012] NSWWCCPD 63, [24].
It is common ground that the decision appealed against was interlocutory, it did not “finally dispose of the rights of the parties”.[15] The appellant submits the appeal raises a question of law that needs to be decided. The respondent submits it is desirable for leave to be granted, as there have been at least two recent decisions from different members reaching different conclusions on the point. It submits resolution of this issue on a Presidential appeal will “assist in the administration of justice”.[16] The threshold criterion in s 352(3A) for the granting of leave is that the Commission is “of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”. I accept that it is “necessary or desirable for the proper and effective determination of the dispute”, within the meaning of s 352(3A) of the 1998 Act, that leave be granted. It is desirable that the controversy regarding the terms of an appropriate referral to a Medical Assessor be dealt with before the assessment occurs.[17] If the appellant is entitled to have both of the alleged impairments assessed, it is desirable this occur at about the same time so the matter can be brought to a conclusion. This is consistent with the ‘objects’ in s 3, and the ‘guiding principle’ in s 42(1), of the 2020 Act. The Commission is required to promote the objects in exercising its discretion: s 4(2) of the 2020 Act. It is required to give effect to the ‘guiding principle’ in exercising any power given to it by the 2020 Act or the Personal Injury Commission Rules 2021. Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the 1998 Act.
[15] Licul v Corney [1976] HCA 6, [11]; 180 CLR 213, 225.
[16] Respondent’s submissions, [15]–[18].
[17] Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50.
THE MEMBER’S REASONS
The Member said the parties agreed that the following issues were in dispute:
(a) whether, pursuant to s 65A(4) of the 1987 Act, permanent impairment resulting from the primary psychological injury can be aggregated with any permanent impairment resulting from the consequential physical condition, and
(b) whether the consequential physical condition is capable of referral to a Medical Assessor.[18]
[18] Reasons, [11].
The Member set out the definitions of ‘injury’ (in s 4 of the 1987 Act) and ‘psychological injury’ (in s 11A(3) of the 1987 Act). She set out ss 65, 65A and 66 of the 1987 Act and s 322 of the 1998 Act.[19] She quoted from Presidential decisions that dealt with the distinction between ‘injury’ within the meaning of s 4 of the 1987 Act and a condition that results from an ‘injury’.[20] She described the question before her as “[c]an permanent impairment resulting from the primary psychological injury be aggregated with permanent impairment resulting from the consequential physical condition?”
[19] Reasons, [14]–[16], [20]–[23].
[20] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon); Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni); Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23; reasons, [17]–[19].
The Member summarised the submissions. The worker said the two impairments, both psychological and physical, should be aggregated. The worker said that s 65A(4) had no application. The only injury occurring on 3 July 2021 was a primary psychological injury, post-traumatic stress disorder. There was no physical injury to the worker in that event. The worker referred to Bouchmouni and submitted s 65A(4) only had application where a primary psychological injury and a physical injury arose from the same incident. Section 65A prevented the recovery of permanent impairment compensation for a secondary psychological condition, it did not deal with secondary physical conditions.[21]
[21] Reasons, [24]–[27].
The worker referred to an unreported decision of Arbitrator Wynyard (as he then was) in BIM v Judicial Commission of NSW[22] (the decision has been deidentified) in support of the submission that both conditions should be referred for assessment and any impairment aggregated. The worker submitted the ordinary and grammatical interpretation of the words in s 65A did not restrict the entitlement in the way the employer argues, the physical condition was not an ‘injury’. The worker referred to an arbitral decision on which the employer relied, Tagicaki v Everwilling Cranes Pty Ltd,[23] submitting that that decision was not binding. The worker referred to NSWPolice Service v Snape.[24] He submitted Snape could be distinguished on the basis it dealt only with the application of s 67 of the 1987 Act.
[22] Unreported, Arbitrator Wynyard, WCC 4528/20, issued 9/12/20, amended 18/12/2020 (BIM).
[23] [2022] NSWPIC 203 (Tagicaki).
[24] [2008] NSWWCCPD 89 (Snape).
The Member noted a concession by the worker that, if the Commission was against him on the issue of the application of s 65A(4), the physical condition should not be referred to a Medical Assessor as the 11 per cent threshold was not reached.[25]
[25] Reasons, [28]–[31].
The Member referred to the respondent’s submissions, which she said referred to principles of statutory interpretation in cases such as Project Blue Sky Inc v Australian Broadcasting Authority[26] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[27] She said the respondent submitted there was a clear intention in s 65A to distinguish between psychological and physical impairments. It referred to Tokich v Tokich Holdings Pty Ltd,[28] and to the State Insurance Regulatory Authority (SIRA) Guidelines for the Evaluation of Permanent Impairment 4th edition (the Guidelines) in support of its position. It submitted s 65A introduced a limited entitlement to lump sum compensation for psychological impairment, the worker could not rely on both his physical and his psychological impairment. The term ‘injury’ in s 65A(4)(a) encompassed a consequential condition. The arbitral decision in BIM, on which the worker relied, was not supported by authority, and failed to consider what was said in Snape or the arguments in Tagicaki.
[26] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[27] [2009] HCA 41; 239 CLR 27 (Alcan).
[28] [2015] NSWWCCPD 72 (Tokich).
The respondent submitted the assessment of the physical condition did not meet the threshold in s 66(1), only the psychological condition could be referred to a Medical Assessor.[29]
[29] Reasons, [32]–[37].
The Member referred to the distinction between an ‘injury’ and a ‘consequential condition’. The endocrinological condition is not itself an ‘injury’ within the meaning of s 4 of the 1987 Act. The claim for permanent impairment compensation is governed by ss 65, 65A and 66 of the 1987 Act, together with s 322 of the 1998 Act.[30]
[30] Reasons, [38]–[40].
The Member noted it was not disputed that the psychological impairment resulted from a ‘primary psychological injury’, s 65A(1) was not a barrier to the payment of compensation. The parties agreed the degree of permanent impairment should be referred to a Medical Assessor; if the permanent impairment was assessed to be at least 15 per cent there would be an entitlement to lump sum compensation. The Member said there was disagreement regarding the application of s 65A(4).[31]
[31] Reasons, [41]–[43].
The Member said “certain impairments can be assessed together in accordance with the provisions in s 65(2) of the 1987 Act and s 322 of the 1998 Act”. She quoted from the decision of Roche DP in Department of Juvenile Justice v Edmed,[32] regarding the meaning of the term ‘injury’ in these provisions, “in light of the definition in s 4 of the 1987 Act”. She said the provisions in ss 65(2) of the 1987 Act and s 322 of the 1998 Act are subject to the provisions in s 65A of the 1987 Act, where psychological impairments are concerned. The Member noted s 65A(4)(a) is to apply “despite s 65(2)”.[33]
[32] [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed).
[33] Reasons, [44]–[46].
The Member said it was clear the word ‘injury’ could have differing meanings in different contexts, referring to Edmed. She referred to the expression ‘consequential condition’. It is not to be found in the 1987 or 1998 Acts. It is a “term of convenience” to describe a condition which, although it is not an ‘injury’, is compensable because it results from an injury and gives rise to incapacity, a need for treatment or permanent impairment. The Member said “[s]ubsection 65A(4) applies if a worker receives a primary psychological injury and a physical injury, arising out of the same incident”.[34] The Member identified the parties’ respective positions as follows:
“The [appellant] argues that the endocrinological condition is not an ‘injury’ arising out of the same incident as the primary psychological injury. The provision is silent as to secondary physical injuries or conditions. As such, the [appellant] says that given its ordinary meaning, s 65A(4) presents no barrier to the aggregation of his psychological and physical impairments.
The respondent argues that the term ‘physical injury’ in this context should be understood as encompassing a consequential or secondary physical condition. I find force in this submission.”[35]
[34] Reasons, [47]–[49].
[35] Reasons, [50]–[51].
The Member said the respondent’s position is consistent with the use of the term ‘injury’ in the definition of ‘secondary psychological injury’ in s 65A(5). Subsection (4) of s 11A deals with injuries of a physical nature which are a physical symptom or the “effect of” a psychological injury. Edmed speaks of the term ‘injury’ being used to describe pathology, as opposed to an injurious event or incident. The Member said the reference to injuries “arising out of the same incident” suggested a similar meaning was intended where the term was used in s 65A(4). “To hold otherwise would render the phrase illogical.”[36] Read in this way, if a worker receives a primary psychological injury and physical pathology (or a physical condition) arising out of the same incident, s 65A(4) entitles the worker to receive lump sum compensation in respect of one or the other. The Member described this approach as consistent with the notes in s 65 of the 1987 Act and s 322 of the 1998 Act, and with the provisions of s 151H (which indicate an intention that physical and psychological impairments should not be aggregated). The Member quoted the following passage from the Guidelines at [1.22]:
“A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in section Multiple impairments [paragraph 1.19], impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
[36] Reasons, [52].
The Member quoted from the second reading speech delivered by the Honourable Paul Whelan, Minister for Police, relating to the Workers Compensation Legislation Amendment Act 2001,[37] which introduced the entitlement to lump sum compensation in respect of psychological injuries. The Member described the approach to s 65A(4), advocated by the respondent, as “consistent with the extrinsic material”.[38]
[37] New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001.
[38] Reasons, [53]–[59].
The Member concluded that “s 65A(4) applies to a consequential or secondary physical condition or ‘injury’ and therefore encompasses the [appellant’s] endocrinological condition”. The two levels of permanent impairment were to be assessed separately, with compensation to be payable in respect of that which yielded the greater sum.[39]
[39] Reasons, [60]–[62].
The Member then dealt with the referral to a Medical Assessor in the circumstances of this matter. There was no evidence of a degree of physical impairment that exceeded the 10 per cent threshold. She noted the appellant’s concession (see [20] above) that a referral should not be made in respect of the physical condition, if the Commission was against his argument on the application of s 65A(4). An order was made for the assessment of permanent impairment resulting from the primary psychological injury only.
THE LEGISLATIVE PROVISIONS AND THE GUIDELINES
Section 65 of the 1987 Act provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note—
The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”
Section 65A provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note—
Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
The Guidelines, at [1.17] to [1.22], provide:
“Multiple Impairments
1.17 Impairments arising from the same injury are to be assessed together. Impairments resulting from more than one injury arising out of the same incident are to be assessed together to calculate the degree of permanent impairment of the claimant.
1.18 The Combined Values Chart in AMA5 (pp 604–06) is used to derive a percentage of whole person impairment (WPI) that arises from multiple impairments. An explanation of the chart’s use is found on pp 9–10 of AMA5. When combining more than two impairments, the assessor should commence with the highest impairment and combine with the next highest and so on.
1.19 The exception to this rule is in the case of psychiatric or psychological injuries. Where applicable, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from any physical injuries arising out of the same incident. The results of the two assessments cannot be combined.
1.20 In the case of a complex injury, where different medical assessors are required to assess different body systems, a ‘lead assessor’ should be nominated to coordinate and calculate the final degree of permanent impairment as a percentage of WPI resulting from the individual assessments.
Psychiatric and psychological injuries
1.21 Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
GROUND OF APPEAL
The appellant raises a single ground of appeal:
“The Member erred in finding that s 65A(4) precludes the aggregation of a primary
psychological injury with a consequential physical condition.”
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352 OF THE 1998 ACT
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Iqbal v Hotel Operation Solutions Pty Ltd the Court of Appeal described the nature of an appeal to a Presidential member, pursuant to s 352(5) of the 1998 Act, in the following terms:
“… s 352(5) imposes a limitation on the nature of the appeal to a determination whether the decision ‘was or was not affected by any error of fact, law or discretion’. The appeal ‘is not a review or new hearing’. As the Deputy President correctly noted, and as this Court has held, if error of fact be the basis of the appeal, as it was in this case, an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator. Absent established error, the Deputy President had no authority to intervene.”[40]
[40] [2022] NSWCA 138 (Iqbal), (per Basten AJA, Brereton and Mitchelmore JJA agreeing), [11].
In Raulston v Toll Pty Ltd,[41] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[42] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[43]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[44]
[41] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[42] (1966) 39 ALJR 505, 506.
[43] [1996] HCA 140; 140 ALR 227.
[44] Raulston, [19].
APPELLANT’S SUBMISSIONS
The appellant refers to the passage from the second reading speech which is quoted in the Member’s reasons at [58]. The speech refers to primary psychological injury as injury in an incident such as an armed hold-up or a violent assault. The appellant contrasts this with a psychological injury that arises as a “consequence of or secondary to physical or other injury”. The appellant submits the second reading speech “sets out the intention of the party moving the amendment to the Workers Compensation [A]ct i.e. s 65A”.[45] The appellant submits the second reading speech supports the contention that a secondary psychological injury in s 65A “is in fact a [c]onsequential condition arising from an accepted injury, clearly it is not an injury arising from the same incident, but rather from the physical injury that arises from an incident at work and is an injury pursuant to s 4 of the [1987 Act]”.[46] The appellant submits that “[t]o read the second reading speech in a way so that it limits the definition of injury in s 4 of the [1987 Act] when it applies to psychological injury is clearly not what parliament intended”. The appellant submits that s 4 of the 1987 Act “still defines what is an injury, that is it must [be] ‘arising out of or in the course of employment’”. The appellant submits terms such as ‘Post Traumatic Stress Disorder’ were used in the second reading speech only to give examples and to emphasise that “only a Primary Psychiatric injury attracts a s 66 entitlement”.[47] The appellant’s submissions note the definition of ‘secondary psychological injury’ in s 65A(5) – “a psychological injury to the extent that it arises as a consequence of, or secondary to a physical injury”.[48]
[45] Appellant’s submissions, [3].
[46] Appellant’s submissions, [5].
[47] Appellant’s submissions, [6]–[7].
[48] Appellant’s submissions, [8].
The appellant submits it is clearly stated in s 65A(4) that where there is a primary psychological injury and a physical injury arising out of the same incident, only one WPI assessment can be awarded. The appellant submits subclauses (4) and (5) of s 65A distinguish between two section 4 injuries arising out of the same incident, as opposed to a secondary psychological injury arising as a consequence of a physical injury. The appellant submits the definition in s 65A(5) is clearly applicable to s 65A, it does not limit the definition of ‘injury’ in s 4. Reference is made to the Guidelines at 1.22 – what is not to be compensated is a secondary psychological condition which arises as a consequence of, or secondary to another work-related condition.[49]
[49] Appellant’s submissions, [9]–[11].
The appellant submits there is error in the reasons at [54]. He submits that the Member refers to the phrase “arising out of the same incident” and says this does not mean at the same time. The appellant submits this “confuses the notion of a consequential condition”. He submits s 65A(5) of the 1987 Act states a secondary psychological injury is consequential to a physical injury. This is not the same as two injuries manifesting at different times from the same incident. The appellant refers to Department of Education and Training v Ireland.[50] The appellant submits the Member has “mislead herself” when considering what a s 4 injury and a consequential condition are. He submits that symptoms may manifest themselves well after an incident, this is entirely different to a consequential condition.[51]
[50] [2008] NSWWCCPD 134 (Ireland).
[51] Appellant’s submissions, [12].
The appellant submits there is error in the finding that the term ‘Secondary psychological injury’ adds to the definition in s 4 of the 1987 Act. This “cannot be right as the term is defined in s 65A(5)”. The appellant submits the other sections of the 1987 Act referred to in the reasons at [55] to not add to the interpretation of s 65A. The appellant submits the decision of Snape is authority that compensation for ‘pain and suffering’ pursuant to s 67 of the 1987 Act cannot be awarded in respect of other conditions that may result from an injury but were not compensated by the relevant permanent impairment award.[52]
[52] Appellant’s submissions, [13]–[15].
The appellant refers to the decision of Principal Member Capel in Tagicaki. The Principal Member said that the “extrinsic material” supported the respondent’s approach. The appellant submits the Guidelines and the second reading speech do not support the finding in Tagicaki.
The appellant refers to Tagicaki at [58], where the Principal Member said that there could be no aggregation of a primary psychological injury with a consequential physical condition, as no specific power existed to permit this. He submits the only prohibition is against aggregation of a primary physical injury with a secondary psychological injury. The appellant submits the legislation is beneficial. In the absence of specific prohibition, aggregation of a primary psychological injury with a consequential physical condition must be permissible. Reference is made to Cram Fluid Power Pty Ltd v Green,[53] a case where limitation of the worker’s entitlements pursuant to s 66 of the 1987 Act flowed from specific legislative restriction.[54]
[53] [2015] NSWCA 250.
[54] Appellant’s submissions, [16].
The appellant states that he adopts the reasoning of Arbitrator Wynyard in BIM. The appellant submits the Member erred in not permitting the aggregation of the primary psychological injury with the secondary physical injury.
RESPONDENT’S SUBMISSIONS
The respondent states the Member considered that the term ‘physical injury’ in s 65A(4) of the 1987 Act included physical ‘consequential conditions’. It submits she drew “reassurance” from the following:
(a) Consistency between the term ‘injury’, in the definition of ‘secondary psychological injury’ in s 65A(5), and the definition in s 11A(4) of ‘injury’ of a physical nature. Reference is made to the reasons at [52].
(b) The interpretation of the term ‘injury’ in Edmed. Reference is made to the reasons at [52].
(c) Consistency with the notes in s 65 of the 1987 Act and s 322 of the 1998 Act, together with s 151H of the 1987 Act. Reference is made to the reasons at [55].
(d) The decision in Snape. Reference is made to the reasons at [56].
(e) Consistency with extrinsic material (the Guidelines, the second reading speech). Reference is made to the reasons at [57] to [59].[55]
[55] Respondent’s submissions, [20]–[22].
The respondent submits the appellant makes the same argument on appeal as he did at first instance: as s 65(4) does not explicitly prohibit the aggregation of a primary psychological injury with a consequential physical condition, aggregation must be allowed. The respondent describes this argument as flawed for the following reasons:
(a) If a literal reading is given to s 65A(4), so too should it be given to ss 66 and 322. If this were done, no consequential conditions would be compensable pursuant to s 66.
(b) The appellant cannot point to any statutory authority to support this argument.
(C) The appellant’s argument would lead to anomalous or unusual results. If a person sustained a primary psychological injury and a primary physical injury (such as in Tokich) the person would have to elect between the two impairments.
The respondent submits that given the mischief s 65A(4) seeks to remedy, and in the context of the statute as a whole, “the only available construction is that psychological injuries/conditions and physical injuries/conditions must be assessed and compensated separately”. It refers to Project Blue Sky.[56]
[56] Respondent’s submissions, [23]–[25].
The respondent submits the words ‘injury’, ‘pathology’ and ‘consequential conditions’ have been interpreted over many years and support its argument. It refers to Edmed and Moon. The respondent submits its argument gives meaning to s 65A(4), which acts as an election provision, consistent with the decision of Tagicaki. It refers to CIC Insurance Ltd v Bankstown Football Club Ltd[57] in support of a submission that the Commission “should seek to avoid interpretations that would result in absurd, capricious, curious, extraordinary, inconvenient, irrational, obscure, unjust, unlikely, or unreasonable constructions.”[58]
[57] [1997] HCA 2; 187 CLR 384.
[58] Respondent’s submissions, [29].
THE OTHER DECISIONS RAISED BY THE PARTIES
The parties have raised a number of first instance decisions that deal with this, or related, issues.
The decision in BIM
The appellant seeks to incorporate the decision in BIM as part of his submissions. It is necessary that BIM be sufficiently described for this purpose. In that case the worker developed a primary psychological injury, and subsequently developed a consequential physical condition involving sudden onset hearing loss and viral labyrinthitis. There were issues regarding whether the psychological and physical conditions could be aggregated. The employer accepted there was a primary psychological injury with a deemed date of 30 October 2015. It accepted the worker sustained a physical injury, hearing loss, on 24 December 2017 “indirectly related and therefore consequent upon the psychological injury”.[59]
[59] BIM, [9].
Arbitrator Wynyard said that if there is an injury within the meaning of s 4, which gives rise to “the onset of a further consequential condition”, the entitlement to “benefits attaches by virtue of that connection”. The Arbitrator referred to the Presidential decision of Kumar v Royal Comfort Bedding Pty Ltd,[60] and other similar decisions, which demonstrated that causal relationship. He quoted from Kooragang Cement Pty Ltd v Bates,[61] Murphy v Allity Management Services Pty Ltd[62] and Secretary, NSW Department of Education v Johnson,[63] which dealt with principles of causation.[64]
[60] [2012] NSWWCCPD 8.
[61] (1994) 35 NSWLR 452 (Kooragang).
[62] [2015] NSWWCCPD 49.
[63] [2019] NSWCA 321 (Johnson).
[64] BIM, [33]–[41].
Arbitrator Wynyard said that s 65A could have the effect of disentitling a worker on two bases. The first is that in subs (1), if there is psychological injury that is secondary to a physical injury. The second is if primary psychological injury and physical injury arise out of the same incident. The worker then may only receive lump sum compensation in respect of one of the two types of injury, due to subs (4). The Arbitrator referred to an argument by the worker that the application of s 65A(4) required two injuries within the meaning of s 4 of the 1987 Act. The Arbitrator in BIM said the physical injury had been accepted as a consequential condition, so s 65A(4) had no application. The second condition could not be described as an ‘injury’, as it did not arise out of or in the course of employment, and the requirements of ss 4 and 9A could not be satisfied.[65]
[65] BIM, [44]–[48].
The Arbitrator referred to a submission by the employer that s 65A(4) applied not only to a physical injury caused by an injurious event, but also to a physical injury that is consequential or secondary to any other injury. The Arbitrator rejected this. He said that s 65A(5) applied to a secondary psychological injury, not a secondary physical injury. The respondent conceded a primary psychological injury and there was no suggestion that a secondary psychological injury had anything to do with the case. There was no legislative intent that a physical injury, secondary to a primary psychological injury, should be so affected.[66]
[66] BIM, [52]–[55].
The Arbitrator dealt with assessment pursuant to s 322 of the 1998 Act. He said there was “only one injury sustained that conforms to the statutory definition in s 4 and s 9A of the 1987 Act”, the psychological injury that resulted in whole person impairment agreed at 14 per cent. He said s 322(3) did not apply as the injurious incident caused only one injury, not “more than one injury”. It was clear on the authorities that there was a distinction between an ‘injury’ and a consequential condition. He found the assessment of the agreed impairments was governed by s 322(2) of the 1998 Act and they could be aggregated, s 65A(4) of the 1987 Act had no application.[67]
[67] BIM, [56]–[63].
The decision in Tagicaki
The respondent, in its submissions, raised the decision of Principal Member Capel in Tagicaki. The worker, a dogman/crane chaser, suffered psychological injury on 13 September 2018 when he was pinned against a crane. A Medical Assessment Certificate (MAC) issued assessing 24 per cent whole person impairment in respect of Post-Traumatic Stress Disorder, Persistent Depressive Disorder and severe Alcohol Use Disorder. A further MAC issued subsequently certifying 50 per cent whole person impairment in respect of the cardiovascular system, relating to alcoholic cardiomyopathy resulting in chronic heart failure. Each related to the date of injury of 13 September 2018.[68]
[68] Tagicaki, [1]–[2], [7]–[8].
The Principal Member quoted the following passage from the reasons of Roche DP in Edmed at [26], where the Deputy President, after referring to the definition of ‘injury’ in s 4 of the 1987 Act, said:
“This definition is unhelpful in determining the issue before me. In Lyons [v Master Builders Association of NSW (2003) 25 NSWCCR 423], Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident ...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event.[69]
[69] Tagicaki, [38].
The Principal Member noted that the terms ‘consequential condition’ and ‘secondary condition’ do not appear in the workers compensation legislation. He referred to the reasons of Kirby P (as his Honour then was) in Kooragang at 462 dealing with causation. He said that the worker’s psychological injury on 13 September 2018 “set in train a series of events that resulted in the [worker] developing physical pathology, namely alcoholic cardiac myopathy”. The application of Edmed would lead to permanent impairments that resulted from these conditions being aggregated, “but this is prohibited by s 65(4) of the 1987 Act”.[70]
[70] Tagicaki, [55]–[59].
The Principal Member said that if the legislation were to provide for the receipt of compensation in respect of a ‘primary psychological injury’ and a secondary physical condition there would have been a definition of ‘secondary condition’ in the workers compensation legislation. He said the Guidelines, similarly, do not define the term ‘secondary condition’. They stipulate that impairments are to be assessed together, except in the case of psychiatric or psychological injuries. The Principal Member said there was one injurious event, the incident on 13 September 2018 and the impairments that result from that incident. He said that s 65A(4) prohibits aggregation where a worker suffers a primary psychological injury and a physical injury arising out of the same incident or injurious event. The worker was entitled to receive compensation in respect of the impairment that yielded “the more beneficial monetary amount”.[71]
[71] Tagicaki, [60]–[65].
The decision in Snape
The decision in Snape involved a police officer who suffered accepted psychological injury due to his employment. He subsequently developed type 1 diabetes which was causally related to the psychiatric injury. The worker was assessed as suffering whole person impairment of 28 per cent in respect of the psychological injury and 25 per cent in respect of the physical injury. Applying s 65A(4)(b) of the 1987 Act he was entitled only to the greater of these, 28 per cent in respect of the psychological injury. The issue on appeal was whether the worker could recover compensation pursuant to s 67 of the 1987 Act for pain and suffering, in respect of both conditions.
Keating P quoted the following from s 65A(4) of the 1987 Act:
“the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury)”. (emphasis added in Snape).
His Honour quoted the following from Amalgamated Society of Engineers v Adelaide Steamship Co Ltd:
“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.”[72]
[72] [1920] HCA 54; 28 CLR 129 (Engineers’ case), (per Higgins J),162.
His Honour described the above passage as “instructive in terms of the approach to be taken”, and said:
“Section 65A(4) restricts compensation for those suffering primary psychological injury and a physical injury arising out of the same incident, as is the position with Mr Snape, from receiving compensation for both. The Worker is only entitled to receive compensation under the division in respect of impairment resulting from one or the other of those injuries.”[73]
[73] Snape, [43].
The Member in the current matter described Snape as “consistent” with the approach that she took.
The decision in Judge
This decision, which post-dates the decision under review on this appeal, involved a psychological injury with an agreed deemed date of 12 November 2018. It was also alleged that, consequential to that injury, the worker lacerated his forearms on 12 November 2018. Whole person impairment in respect of the psychological injury was assessed at 22 per cent and that in respect of the forearms was assessed at 14 per cent. Member Whiffin accepted that the forearm injury resulted from, and was consequential upon, the psychological injury.[74]
[74] Judge, [2], [11], [37]–[39].
The Member said that ss 65, 65A and 322 need to be read together and “interpreted in a consistent and harmonious way”. He noted that Roche DP in Edmed did not “use the strict definition of ‘injury’ found in s 4”, referring to the passage quoted at [57] above. The term ‘injury’ referred to the pathology resulting from an injurious event, not limited by the definition in s 4. The forearm pathology was an ‘injury’ within s 65 of the 1987 Act and s 322 of the 1998 Act, applying Edmed. This being so, it would be inconsistent for it not to also be an ‘injury’ within s 65A(4). It was necessary to construe these sections together, they rely on each other. He said it was necessary to construe the language of these provisions in a way consistent with the 1987 and 1998 Acts, “but particularly those provisions dealing with the determination and assessment of lump sum compensation claims for permanent impairment”.[75]
[75] Judge, [45]–[49].
The Member contrasted the “causative trail” in s 4 (“arising out of or in the course of employment”) with that in s 65A(4) (“arising out of the same incident”). The second of these “encompasses conditions or pathologies … that are consequent upon an injurious event, but not necessarily arising out of or in the course of employment”. The forearm lacerations arose out of the same incident, they were “consequent upon an injurious event, but not necessarily arising out of or in the course of employment”.[76] The Member referred to Ozcan v Macarthur Disability Services Ltd where Macfarlan JA said:
“The Deputy President reached a different conclusion because she found that the right shoulder injury ‘did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology)’. This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident [the Member’s emphasis], that is, that of 14 November 2011”.[77] (excluding references)
[76] Judge, [50].
[77] [2021] NSWCA 56 (Ozcan), [16].
The Member concluded the term ‘physical injury’ in s 65A(4) “would include the pathology in the [worker’s] forearms”. The Member described this as consistent with the decision in Snape. He described it as “entirely consistent with cl 1.19 of the [Guidelines]”[78] (quoted at [34] above). He referred to a Presidential decision of Abu-Ali v Martin-Brower Australia Pty Ltd[79] in which I stated that the Guidelines made no provision for assessment of permanent impairment in respect of a secondary psychological condition. This was in circumstances where s 322(1) of the 1998 Act required that assessment of permanent impairment of a worker be made in accordance with the Guidelines. The Member observed:
“Just as the guidelines provide no basis for an assessment to be made of a secondary psychological injury, they also provide no basis for the combination of assessments of psychological injuries and assessments of physical injuries arising out of the same incident.”[80]
[78] Judge, [54]–[56].
[79] [2017] NSWWCCPD 25.
[80] Judge, [58].
The Member concluded:
“Accordingly, I find that the applicant’s lacerations to his forearms (while consequential or secondary to his primary psychological injury) [are] a ‘physical injury’ as described in s 65(4) of the 1987 Act. The section prohibits the aggregation of psychological and physical impairments where a worker suffers a primary psychological injury and a ‘physical injury’ arising out of the same incident or injurious event.”[81]
[81] Judge, [59].
The Member awarded permanent impairment compensation in respect of the primary psychological injury, this being the assessment that yielded the greater amount of compensation. He expressed his “broad agreement” with the decision in Tagicaki and with Member Homan’s decision the subject of this appeal.[82]
CONSIDERATION
[82] Judge, [61].
The appellant’s reliance on the decision in BIM
The appellant adopts the reasoning in BIM. The difficulties of interpretation tend to revolve around the meaning of ‘injury’ in the context of the provisions at issue. Arbitrator Wynyard quoted the following passage from the reasons of Emmett AJA (Macfarlan JA and Simpson AJA agreeing) in Johnson:
“53. In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is to say, the question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.
54. Two causation tests are involved in a medical assessment of permanent impairment under Pt 7 of Ch 7 of the [1998] Act. The first test arises from the provisions of ss 9 and 9A of [the 1987] Act. That is to say, it must be shown that the injury that gave rise to the impairment in question arose out of or in the course of employment … and that the employment was a substantial contributing factor to the injury. The second test arises from the provisions of ss 319(c) and 326(1)(a) of the [1998] Act. That is to say, it must be shown that the permanent impairment is as a result ofthe injury.
55. The phrase ‘the degree of permanent impairment of the person as a result of an injury’ appears in both ss 319(c) and s 326(1)(a) of the [1998] Act. That composite phrase requires an enquiry as to the causal connection between the degree, or percentage, of assessed permanent impairment of a worker, on the one hand, and the compensable injury, on the other. That is to say, it was necessary for the AMS and the Appeal Panel to assess the degree, or percentage, of whole person impairment of the Worker that was caused by or is attributable to the First Injury. In doing so, common law principles of causation in tort are to be applied.”[83] (excluding references)
[83] Johnson, [53]–[55].
Arbitrator Wynyard said there was a distinction between an ‘injury’ and a consequential condition. The agreed facts were that there was a primary psychological injury on 30 October 2015, and a secondary physical condition of hearing loss and labyrinthitis that developed in about December 2017. The Arbitrator said the physical injury could not have satisfied the definition of ‘injury’ in s 4, nor the provisions of s 9A. It followed that it was not an ‘injury’ as defined in s 4 of the 1987 Act. He said the application of s 65A(4) of the 1987 Act required the presence of two ‘injuries’.[84]
[84] BIM, [47]–[48].
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