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Bell v The Mining Pty Ltd

Bell v The Mining Pty Ltd

Case [2023] NSWPIC 295 21 June 2023

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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%…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bell v The Mining Pty Ltd

Details

AGLC: Bell v The Mining Pty Ltd [2023] NSWPIC 295
Case: [2023] NSWPIC 295
Decision Date: 21 June 2023

CaseChat Overview and Summary

In the case of Bell v The Mining Pty Ltd, the applicant sought a lump sum compensation for a primary psychological injury and a consequential endocrinological condition. The dispute arose from the interpretation and application of the Workers Compensation Act 1987, specifically section 65A(4), which addresses the aggregation of impairments resulting from psychological and physical conditions. The court was required to determine whether the impairment stemming from the psychological injury could be aggregated with the impairment from the physical condition, and if so, how this should be assessed under the statute.

The legal issues centred around the proper interpretation of section 65A(4) and its applicability to the applicant’s endocrinological condition, which was consequential to the primary psychological injury. The court considered whether the condition could be classified as a "secondary physical condition" or "injury" within the meaning of the Act, and whether impairments should be assessed separately despite section 65(2). Furthermore, the court needed to decide if the threshold conditions for referring the physical condition to a Medical Assessor under section 66(1) had been met.

The court held that section 65A(4) does indeed apply to a consequential or secondary physical condition or "injury," which includes the applicant’s endocrinological condition. However, despite the potential overlap under section 65(2), impairments were to be assessed separately. The court found no evidence that the threshold in section 66(1) had been met to warrant referral of the physical condition to a Medical Assessor. Consequently, the matter was remitted to the President of the Personal Injury Commission to arrange for a Medical Assessor to evaluate the degree of permanent impairment solely resulting from the primary psychological injury.

The final orders of the court mandated that the matter be remitted for the assessment of the degree of permanent impairment attributable to the primary psychological injury only, without referring the physical condition to a Medical Assessor. This decision clarifies the scope of section 65A(4) and the procedures for assessing impairments under the Workers Compensation Act 1987.

Orders