Brodie v Secretary, Department of Education
[2023] NSWPIC 649
•5 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Brodie v Secretary, Department of Education & Ors [2023] NSWPIC 649 |
| APPLICANT: | Carol Brodie |
| FIRST RESPONDENT: | Secretary, Department of Education |
| SECOND RESPONDENT: | Dr A J Oliver Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 5 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant suffered an injury in the employ of the first and second respondents; the second respondent sought to be removed from any referral to a medical assessor to assess whole person impairment on the basis that any effect of the injury suffered by the applicant in its employ had ceased; application refused; Held – found that the applicant was suffering from a disease and the second respondent was the last relevant employer. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was injured by way of a disease (psychological) in the employ of the first and second respondents. 2. The injury is deemed to have occurred on the date of the claim made by the applicant against the last relevant employer. As such the second respondent is liable for the extent of that claim. 3. The application by the second respondent to amend the Application to Resolve a Dispute (ARD) to delete the second respondent is refused. 4. The report of Dr Chow is excluded by operation of regulation 44 and will not be provided to the Medical Assessor. The Commission Orders: 5. There will be an award for the applicant against the second respondent for a psychological injury incurred during the course of employment with the second respondent. 6. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) Date of injury: 16 January 2023 (deemed). (b) Body system: psychological injury. (c) Method of assessment: whole person impairment. (d) Documents to be referred: Application to Resolve Dispute (ARD) and attachments, Reply and attachments excluding the report of Dr Chow. |
STATEMENT OF REASONS
BACKGROUND
The applicant was injured in the employ of the first respondent.
The applicant was further injured in the employ of the second respondent. Liability was accepted by the second respondent.
The second respondent submits that it should not be part of any referral to a Medical Assessor.
The applicant seeks payment for a whole person impairment of 15% (psychological) in an application which is presently against the first and second respondent.
MATTERS IN DISPUTE
The second respondent submits that it has met all of its obligations to the applicant and that it has no further liability. Any injury to the applicant suffered in its employment has ceased. There is no medical dispute against the second respondent within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act) which is capable of referral to a Medical Assessor. Any referral to a Medical Assessor should not include the second respondent.
The first respondent submits that the applicant’s claim is for a disease and that the second respondent is the last relevant employer.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
EVIDENCE
There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to ARD (Reply) and attached documents.
The second respondent’s submissions
The second respondent lodged written submissions.
It submits that Dr Whetton assessed 0% whole person impairment. Dr Chow agrees. The applicant relies on the assessment of Dr Robert Gertler of 15% whole person impairment. The respondent’s submissions rely on an examination and consideration of the medical report of Dr Robert Gertler:[1]
“Her impairment is related to solely to her employment with TAFE New South Walés. The aggravation in her condition brought about by the circumstances of her employment with Dr Oliver has in my opinion largely resolved and need not be taken into consideration in assessing impairment.”
(my emphasis)
[1] ARD page 43 dated 6 May 2021.
The second respondent submits that, after a proper consideration of Dr Whetton’s,
Dr Chow’s and Dr Gertler’s reports, there is no medical dispute capable of referral to a Medical Assessor against the second respondent pursuant to s 319 of the 1998 Act.
The applicant’s submissions
The applicant submits that the applicant was injured in the employ of the first respondent and that that injury was aggravated by employment with the second respondent. The second respondent accepted liability for the injury which it said was an adjustment disorder with anxiety.[2] The injury is a disease to which the provisions of s 15 the Workers Compensation Act 1987 (the 1987 Act) applies. I have set out the further submissions below. There is no purpose to summarising them. They are succinct;
[2] ARD page 31 s 78 Notice dated 18 May 2023.
“5. The effect of the section is that it is not necessary to show that the injury was due to the employment with the second respondent. It is sufficient that the employment was of a type to which the disease was due and that the Second Respondent was the last employer to employ the Applicant in work of that type.2 It is not necessary to show that the employment was, in fact, causative of the injury.
2 Kelly v Glenroc Pastoral Co Pty Ltd [1994] NSWCA 162; Grate Lace Pty Ltd v Thiess Watkins White (Constructions) Pty Ltd [1995] NSWCA 183. 6136728
6. In this case the Second Respondent concedes injury. It must follow that there is no dispute that the employment with the Second Respondent was not only of the requisite type but that the employment did contribute to the injury.
7. The effect of the section is that the entirety of the injury is deemed to have occurred at the time that the claim was made for permanent impairment compensation and that pursuant to sections 15 and 18 the compensation is payable by the Second Respondent as the last employer to employ the Applicant in employment to which the injury was due.
8. An application of Section 16 leads to the same conclusion.
9. The application of either section 15 or 16 means that there is only one injury and that injury is deemed to have occurred on 16 January 2023 when the claim was made on the Second Respondent. By operation of those sections there is only one injury and the Second respondent is liable to pay the compensation for the impairment resulting from that injury.
10. The deeming means that there is no basis for finding separate injuries with each employer. Because the claim was made after the end of the employment with the second respondent there is no injury for which the first respondent can be liable.
11. The submissions made by the Second Respondent are essentially misconceived. The submissions make the same mistake that Judge Manser made in Grate Lace by trying to introduce the concept of true causation in the case where the Act operated to provide for a deemed causation.
12. The authorities referred to all consider the circumstances where there have been injuries to various body parts and one or more of those body parts have been assessed as 0%. The question was whether there could be a valid claim or medical dispute in respect of that body part.
13. This case is quite different. Here there is only one injury to one body system being the psychological injury. As explained the entirety of the injury is deemed to have occurred at the date of claim and the second respondent as the last relevant employer is liable for the entirety of the effects of that injury.
14. In other words it is immaterial whether the aggravation or other contribution of the Second Respondent to the injury by itself resulted in impairment. The correct question is whether the totality of the injury resulting from all employment has resulted in impairment. In that respect the claim was for 15% WPI relying upon the report of Dr Gertler.
15. The material before the Commission contains only one opinion that correctly recognises the law and makes a valid assessment.
16. The Second Respondent relies upon the opinion of Dr Whetton. His opinion is that the effect of the specific aggravation caused by the employment with the Second respondent has ceased. On that basis he concludes that the impairment due to the employment with the Second Respondent applying concepts of true causation is 0%.
17. The Second Respondent cannot rely upon the opinions of Dr Chow because of the operation of regulation 44.
18. Accordingly the only opinion before the Commission that addresses the true question which is what is the degree of impairment resulting from the injury deemed to have occurred on 16 January 2023 is the opinion of Dr Gertler. As such there is no true medical dispute to refer for assessment. In any event the second respondent also relies upon the opinion of Dr Gertler.3
19. Pursuant to section 105 of the 1998 Act the Commission has the jurisdiction to determine all matters arising under the Acts. That jurisdiction is no longer limited by the provisions of the former section 293(2). The objects of the Commission are best served by making an order based on the uncontroverted evidence of DR Gertler rather than engaging in the expense and delay involved in an assessment by a Medical Assessor.4
20. There should be an award for the Applicant against the Second Respondent in respect of a 15% WPI.”
The first respondent’s submissions
The first respondent’s submissions are set out below. They are succinct:
“1. The Applicant brings a claim pursuant to s66 of the Workers Compensation Act
(WCA) with respect to a psychological injury alleged to have occurred as a result
of the nature and conditions of her employment.
2. The First Respondent, in its s78 notice, has put injury in dispute. By contrast the
Second Respondent, has not put injury in issue and has accepted liability for the
claim. Therefore there is no dispute as to injury as between the Second
Respondent and the Applicant.
Liability for the Claim
3. The First Respondent respectfully adopts and repeates (sic) the Applicant’s
submissions as to the application of s15 and 16 of the WCA to the Applicant’s
claim, namely:
a. That the Applicant’s claim for psychological injury is in the nature of a
disease process, and
b. That s15 and 16 of the WCA applies to the claim.
4. The operaton of s15(1)(a)(ii) & 16(1)(a)(ii) mean that the date on which the injury
occurred is deemed to be the date on which the impairment claim is made. (see
also Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277).
5. Moreover s15(1)(b) and 16(1)(b) states that compensation is payable by the last
employer who employed the worker in employment that was a ‘substantial
contributing factor’ to the injury. Noting that the Second Respondent has accepted liability in relation to the Applicant’s injury, the Second Respondent is the last employer who employed the worker in employment that was a substantial
contributing factor to the injury.
6. As such the First Respondent says that there is no need for any determination as
to the issue of injury in relation to any claim against the First Respondent. Further
the First Respondent says that the only matter for determination is the issue of the level of impairment that the Applicant has suffered as a result of her injury, with the Second Respondent being liable to pay compensation accordingly.
7. The Second Respondent’s submissions as to whether a medical dispute exists with respect to the claim against it has no relevance in circumstances where the
operation of s15 and 16 of the WCA confirms that liability for the Applicant’s claim
as a whole falls on the Second Respondent.
8. As to the orders to be made, the First Respondent says that it would be appropriate to refer the Applicant for Assessment by a Medical Assessor.”
The second respondent’s further submissions regarding regulation 44
In relation to the report of Dr Chow, which the applicant and first respondent submit should be excluded pursuant to regulation 44 the second respondent submits that:
“The Second Respondent submits it is not in breach of that regulation, rather is simply making submissions based on the medical evidence relied upon by the Applicant and the First Respondent. The Second Respondent also refers to Pirie v State of New South Wales (NSW Police Force) [2022] NSWPICPD 4 in which ADP Parker confirmed that cl 44 as a matter of construction only applies to reports to be admitted on behalf of a party before the Commission and does not apply to medical reports to be submitted to a medical assessor in the making of a medical assessment.”
CONSIDERATION
I am not persuaded by the second respondent’s submission that there were two separate injuries against the first and second respondents.
I am satisfied that the applicant was injured by way of a disease in the employ of the first and second respondent.
I am not persuaded by the submissions of the second respondent in relation to the admissibility of the report of Dr Chow. The second respondent seeks to provide the report to the Commission in a hearing. It is expressly prohibited by the regulation.
The second respondent has admitted liability for an injury to the applicant in its employ.
Dr Gertler states that the aggravation in the employ of the second respondent has largely resolved. Despite the second respondent’s submissions I do not consider that Dr Gertler goes so far as to find that any injury in the employ of the second respondent no longer operates. Largely resolved is not the same as resolved. Largely resolved means partially unresolved.
Although I am satisfied that the Commission can determine this claim for whole person impairment I am persuaded that the assessment of whole person impairment (psychological) is a matter best determined in this case by a Medical Assessor.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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