Bell v The Mining Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bell v The Mining Pty Ltd [2023] NSWPIC 295
APPLICANT:	Bradley Bell
RESPONDENT:	The Mining Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	21 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation in respect of primary psychological injury and consequential endocrinological condition; whether impairment resulting from the psychological injury can be aggregated with impairment resulting from the physical condition; interpretation and application of section 65A(4); Held – section 65A(4) applies to a consequential or secondary physical condition or “injury” and therefore encompasses the applicant’s endocrinological condition; despite section 65(2), impairments to be assessed separately; no basis to refer the physical condition to a Medical Assessor (MA) as there was no evidence of the threshold in section 66(1) being reached; matter remitted to the President of the Personal Injury Commission for referral to a MA to assess the degree of permanent impairment resulting from the primary psychological injury only.
determinations made:

The Commission determines:

Pursuant to s 65A(4) of the Workers Compensation Act 1987, permanent impairment resulting from the applicant’s primary psychological injury cannot be aggregated with any permanent impairment resulting from the consequential endocrinological condition.
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.
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
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.

STATEMENT OF REASONS

BACKGROUND

Mr Bradley Bell (the applicant) sustained a primary psychological injury arising out of or in the course of his employment with The Mining Pty Ltd (the respondent) on 3 July 2021 when he discovered the body of a deceased co-worker.
Liability for a primary psychological injury in the nature of post-traumatic stress disorder has been accepted by the respondent’s insurer.
It is also not in dispute that the applicant has sustained a consequential endocrinological condition due to significant weight gain as a result of the primary psychological injury.
On 18 July 2022, the applicant’s solicitors forwarded a claim for lump sum compensation pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in reliance on an assessment by psychiatrist, Dr Abdal Khan, of 19% whole person impairment (WPI) resulting from the primary psychological injury.
The claim was responded to on 23 November 2022 with a “nil” settlement offer. The respondent relied on an assessment of 7% WPI made by its Independent Medical Examiner (IME), Dr Yajuvendra Bisht.
On 20 December 2022, the applicant’s solicitors amended the claim to seek lump sum compensation in respect of 23% WPI, in reliance on an assessment of 5% WPI of the endocrine system by Dr Stephen Thornley in combination with Dr Khan’s assessment of 19% WPI.
A notice was issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 16 March 2023 disputing the applicant’s entitlement to lump sum compensation. The respondent submitted that the applicant was not entitled to aggregate the assessments of permanent impairment in respect of a primary psychological injury and a consequential physical condition in accordance with s 65A of the 1987 Act. It was further submitted that neither impairment exceeded the relevant thresholds in ss 65A(3) and 66(1) of the 1987 Act.
These proceedings were commenced in the Personal Injury Commission (the Commission) by lodgement of an Application to Resolve a Dispute (ARD) on 18 April 2023. The applicant seeks lump sum compensation in respect of 23% WPI in reliance upon the combined assessments of Dr Khan and Dr Thornley.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 20 June 2023 via Microsoft Teams. The applicant was represented by Mr Bill Carney of counsel, instructed by Ms Nadene Alawie. The respondent was represented by Mr Andrew Parker of counsel, instructed by Mr Martin Thorne. A representative from the insurer, Mr Schram, was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
The Commission has been assisted by oral submissions made by counsel at the arbitration hearing. Those submissions were recorded and are addressed below.

FINDINGS AND REASONS

Relevant law

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
Subsection 11A(4) provides:
“(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.”
A distinction has been drawn in the case law between an “injury” for the purposes of s 4 of the 1987 Act and a condition that has resulted from an “injury”. In Moon v Conmah[1] Roche DP at [45]-[46] observed:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[2] (Bouchmouni), Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[2] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[3] Snell DP referred to the decisions in Moon v Conmah[4] and Kumar v Royal Comfort Bedding[5] and observed:
“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.”
[3] [2016] NSWWCCPD 23.
[4] [2009] NSWWCCPD 134.
[5] [2012] NSWWCCPD 8.
Section 66 of the 1987 Act deals with the entitlement to compensation for permanent impairment. Relevantly, s 66(1) provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Section 65 of the 1987 Act deals with how the degree of permanent impairment is to be determined:
“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.”
Special provisions for psychological injuries are set out in s 65A of the 1987 Act:
“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.”
The assessment of impairment is dealt with at s 322 of the 1998 Act as follows:
“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.”

Can permanent impairment resulting from the primary psychological injury be aggregated with permanent impairment resulting from the consequential physical condition?

Applicant’s submissions

The applicant submitted that his psychological impairment should be aggregated with his physical impairment in reliance on s 65 of the 1987 Act and s 322 of the 1998 Act. The applicant said that s 65A(4) had no application in the circumstances of his case.
The applicant noted that the only “injury” occurring on 3 July 2021 was a primary psychological injury in the nature of post-traumatic stress disorder. No physical injury occurred in that event, although it was easy to imagine a range of scenarios where both a physical injury and a primary psychological injury occurred in the same incident.
The physical condition in this case, an aggravation of a pre-existing diabetic condition, occurred sometime later as a result of weight gain consequential to the psychological injury. The applicant referred to the case law, including Bouchmouni, on the distinction between a consequential condition and an injury described above. The applicant submitted that s 65A(4)(a) only had application where there was a primary psychological injury and a physical “injury” arising from the same incident.
The applicant acknowledged that s 65A also provided that permanent impairment compensation was not payable in respect of a secondary psychological condition but observed that the claim in these proceedings was for a secondary physical condition resulting from a primary psychological injury. Section 65A said nothing about secondary physical conditions.
The applicant relied on the reasoning in an unreported arbitral decision in WCC 4528/20 (Buckland - 18 December 2020) in support of his submission that both the psychological injury and the consequential physical condition should be referred to a Medical Assessor and any impairment aggregated.
Applying an ordinary and grammatical interpretation to the words in s 65A, nothing in that provision restricted the applicant’s entitlement to have the physical impairment aggregated with the psychological impairment. The physical condition was not an “injury”.
The applicant submitted that the arbitral decision on which the respondent relied, Tagicaki v Everwilling Cranes Pty Limited[6] (Tagicaki) was not binding. The presidential decision in NSW Police Service v Snape[7] (Snape) was distinguished on the basis that it considered only the application of s 67 of the 1987 Act.
[6] [2022] NSWPIC 203.
[7][7] [2008] NSWWCCPD 89.
The applicant conceded that if the Commission was against him with regard to the application of s 65A(4), the physical condition should not be referred to a Medical Assessor as the 11% threshold had not been reached.

Respondent’s submissions

The respondent maintained its disputes and noted that prior to the 2002 amendments, lump sum compensation was not payable in respect of psychological impairment. A limited entitlement to compensation for psychological impairment was subsequently codified within
s 65A of the 1987 Act. Applying s 65A, the applicant was not entitled to compensation for both his psychological and physical impairments.
The respondent referred to the principles of statutory interpretation set out in Project Blue Sky v Australian Broadcasting Authority[8] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[9] and submitted that there was a clear intention to distinguish between psychological and physical impairments in s 65A. The applicant was required to elect between the two. The respondent also referred to the decisions in Tokich v Tokich Holdings Pty Ltd,[10] Snape and the SIRA Guidelines for the Evaluation of Permanent Impairment in support of this contention.
[8] [1998] HCA 28; 194 CLR 355.
[9] [2009] HCA 41; 239 CLR 27.
[10] [2015] NSWWCCPD 72.
The distinction between psychological impairments and physical impairments in s 151H of the 1987 Act was also noted.
The respondent submitted that the purpose of s 65A was to introduce a limited entitlement to compensation for psychological impairment. The applicant could rely on his psychological impairment or physical impairment but not both.
Relying on the arbitral decision in Tagicaki, the respondent submitted that the term “injury” in s 65A(4)(a) encompassed a consequential condition. The arbitral decision in Buckland was not supported by authority and was made without consideration of what was said in Snape or the arguments in Tagicaki.
Given that the degree of permanent impairment for the applicant’s physical condition did not, on Dr Thornley’s assessment, exceed the 10% threshold in s 66(1), only the psychological injury could be referred to a Medical Assessor.

Consideration

The case law set out above drawing a distinction between an “injury” for the purposes of s 4 of the 1987 Act and a consequential condition has been applied in numerous decisions of the Commission. There is no dispute in this case that the endocrinological condition sustained by the applicant is not in itself an “injury” for the purposes of s 4 of the 1987 Act. It is, nonethelesss, compensable in accordance with the 1987 Act, being a condition that has “resulted from” the injury on 3 July 2021.
To the extent that it is reasonably necessary for the applicant to undergo treatment for that condition, such treatment expenses would be compensable in accordance with s 60 of the 1987 Act. If it was established that incapacity had resulted from the condition, then an entitlement to weekly compensation may arise. These are not, however, matters requiring determination in these proceedings.
The claim currently before the Commission is only for permanent impairment compensation. The entitlement to such compensation is governed by the statutory provisions set out above in ss 65, 65A and 66 of the 1987 Act and s 322 of the 1998 Act.
In relation to the claim for psychological impairment, there is no dispute that the impairment results from a “primary psychological injury” such that s 65A(1) does not present a barrier to the payment of compensation.
There is a medical dispute as to the degree of permanent impairment resulting from the primary psychological injury and the parties are in agreement that that dispute should be referred to a Medical Assessor in accordance with Part 7 of Chapter 7 of the 1998 Act. If the degree of permanent impairment resulting from the primary psychological injury is assessed to be at least 15% there will be an entitlement to lump sum compensation.
With regard to the consequential endocrinological condition, the parties are in disagreement as to the application of s 65A(4).
It is well established that 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.
In Department of Juvenile Justice v Edmed[11] (Edmed), Roche DP considered the meaning of the term “injury” in those provisions in light of the definition in s 4 of the 1987 Act and commented:
“This definition is unhelpful in determining the issue before me. In Lyons, 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. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.”
[11] 2008] NSWWCCPD 6.
The provisions in s 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. This is evident from the terms of s 65A(4)(a) which apply “despite s 65(2)”.
The comments of Roche DP set out above are apt in considering the meaning of the term “injury” as it appears in s 65A. It is clear that the term can have different meanings in differing contexts. For example, in s 65A(5), the definition of “secondary psychological injury” makes clear that what is being described is not an “injury” for the purposes of s 4 but a psychological condition that is consequential or secondary to a physical injury. In other words, a “consequential condition”.
The expression, “consequential condition” is not one which is found in either the 1987 Act or the 1998 Act. Rather it is a term of convenience used to describe a condition which is not an injury but is, subject to the provisions of the legislation, compensable because it has resulted from an injury and gives rise to incapacity, a need for treatment or permanent impairment.
It is in this context which s 65A(4) must be read. Subsection 65A(4) applies if a worker receives a primary psychological injury and a physical injury, arising out of the same incident.
The applicant 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 applicant 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.
The respondent’s submission is consistent with the use the term “injury” in s 65A(5) in the definition of a “secondary psychological injury”. Subsection 11A(4) of the 1987 Act deals with “injuries” of a physical nature which are a physical symptom or “effect of” a psychological injury. The comments in Edmed, confirm that the term “injury” is used in parts of the legislation to describe “pathology” as opposed to an injurious event or incident. The reference to injuries “arising out of the same incident” suggests that a similar meaning was intended to be given to that term in s 65A(4). To hold otherwise would render the phrase illogical.
To read s 65A(4) in the manner contended for by the respondent, if a worker receives a primary psychological injury and physical pathology (or a physical condition) arising out of the same incident, the worker is only entitled to receive compensation in respect of either the psychological impairment or the physical impairment but not both.
The reference to injuries “arising out of the same incident” connotes a causal relationship to the injurious incident but does not require that the injuries occurred temporally in the incident itself. See, for example, the consideration of the phrase “arising out of” in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd.[12]
[12] (2009) NSWCA 324.
This approach is consistent with the notes in s 65 of the 1987 Act and s 322 of the 1998 Act and other provisions in the legislation including s 151H of the 1987Act which indicate an intention that physical impairments and psychological impairments should not be aggregated.
This interpretation is also consistent with the approach taken in the Presidential decision in Snape, where an arbitrator was found to be in error in considering both the effects of impairment resulting from a primary psychological condition and impairment resulting from a secondary physical condition for the purposes of s 67 of the 1987 Act.
As noted by the respondent, the SIRA Guidelines for the Evaluation of Permanent Impairment at Part 1.22 state:
“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, 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.”
The entitlement to lump sum compensation for psychological injures was introduced by the Workers Compensation Legislation Amendment Act 2001 and commenced on 1 January 2002. The reasoning behind this amendment was explained by the Minister for Police, Paul Whelan, in the second reading speech in the Legislative Assembly on 19 June 2001:
“I specifically draw attention to the proposed arrangements for compensating permanent impairments caused by psychological injuries. Under the current legislative scheme, a worker who suffers a permanent psychological impairment receives nothing in the way of permanent loss compensation. The worker only receives weekly benefits and medical expenses, but nothing for the ongoing impact on his or her life. These workers, who might include victims of violent assaults in the workplace or armed hold-ups, would presently be left to pursue damages under the common law system if they can demonstrate fault, with all the risks and costly legal fees that entails.
The bill allows workers who suffer a permanent psychological or psychiatric impairment arising directly from the workplace to be compensated with lump sum benefits. The provisions are limited to those suffering a primary psychological injury, that is, a psychological injury that arises directly from an event in the workplace—such as an armed hold-up or violent assault—rather than as a consequence of or secondary to a physical or other injury. Workers will need to show that they have a recognised psychological or psychiatric impairment. Further, the provisions will be subject to a threshold prescribed by regulations. The Government considers this to be necessary because of the difficulties associated with diagnosing and distinguishing work-related impairments and based on advice from experts in the field that minor psychological impairments are common and need not impact on a worker's capacity to continue in employment”.
I note, incidentally, that the approach to s 65A(4) advocated by the respondent is consistent with the extrinsic material.
For these reasons, I find that s 65A(4) applies to a consequential or secondary physical condition or “injury” and therefore encompasses the applicant’s endocrinological condition.
Despite s 65(2), 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 endocrinological condition.
The applicant will only be entitled to receive compensation for whichever impairment results in the greater amount of compensation being payable and is not entitled to receive compensation for the other impairment.

Referral to a Medical Assessor

The findings above are not in themselves a barrier to the dispute as the degree of permanent impairment resulting from the applicant’s endocrinological condition being referred to a Medical Assessor for assessment.
Having found that the physical impairment cannot be aggregated with the psychological impairment, however, there would only be an entitlement to lump sum compensation for the physical impairment if it exceeded the 10% threshold in s 66(1) of the 1987 Act and was greater than any psychological impairment.
No evidence has been provided of a degree of physical impairment that exceeds the 10% threshold.
In Abou-Haidar v Consolidated Wire Pty Ltd,[13] Roche DP commented at [55]:
“A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.”
[13] [2010] NSWWCCPD 128.
In Woolworths v Stafford,[14] Roche DP commented at [66]:
“In this approach, consistent with the Arbitrator’s conclusion, Mr Stafford’s demand on 7 April 2014 was not a valid claim because it was not capable of payment in accordance with the 1987 Act. As a result, it does not qualify as ‘one claim’ for the purposes of s 66(1A).”
[14] [2015] NSWWCCPD 36.
In all the circumstances, and noting the applicant’s appropriate concession, there is no basis to refer the endocrinological condition to a Medical Assessor.
There will be an order remitting the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the primary psychological injury only.

[2023] NSWPIC 295

21 June 2023