Coad v Tasmania
[2021] TASFC 2
•17 February 2021
[2021] TASFC 2
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Coad v Tasmania [2021] TASFC 2 |
| PARTIES: | COAD, Dennis Stephen |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 1019/2019 |
| JUDGMENT | |
| APPEALED FROM: | C v The State of Tasmania (Department of Police & Emergency Management) [2019] TASWRCT 12 |
| DELIVERED ON: | 17 February 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 13 November 2019 |
| JUDGMENT OF: | Wood J, Geason J, Martin AJ |
| CATCHWORDS: |
Workers' compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Lump sum payments – Permanent impairment and loss – Workers not entitled to lump sum compensation unless impairment exceeds threshold - Threshold for physical impairment not less than 5% whole person impairment and threshold for psychiatric impairment not less than 10% – Worker suffered injury to cervical spine assessed as 5% and post-traumatic stress disorder assessed as 6% – Whether Tribunal erred by not combining impairments – Beneficial construction – Impairments can be combined if either threshold met – Whole person impairment should be assessed as 11%.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss 71 and 72.
Acts Interpretation Act 1931 (Tas), s 8A.
Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328; Bird v The Commonwealth (1988) 165 CLR 1;
Attorney-General for Tasmania v L C [2018] TASFC 6, 28 Tas R 70, referred to.
Aust Dig Workers' Compensation [361]
REPRESENTATION:
Counsel:
Appellant: S Taglieri SC Respondent: P Turner SC & L Kelly
Solicitors:
Appellant: Simmons Wolfhagen Respondent: Office of the Solicitor-General
| Judgment Number: | [2021] TASFC 2 |
| Number of paragraphs: | 99 |
Serial No 2/2021
File No 1019/2019
DENNIS STEPHEN COAD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT WOOD J GEASON J MARTIN AJ (Dissenting) 17 February 2021 |
| Orders of the Court | |
| 1 Appeal allowed. |
2 Order of the Workers Rehabilitation and Compensation Tribunal of 11 April 2019 set aside.
Serial No 2/2021
File No 1019/2019
DENNIS STEPHEN COAD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT WOOD J 17 February 2021 |
1 The appellant was assaulted in the course of his employment as a police officer on 28 January 2007. He suffered an injury to his cervical spine and post-traumatic stress disorder (PTSD), and made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1998. The claim was accepted by his employer. Years later, on 5 October 2017, he sought a determination of entitlement to lump sum compensation under the Act and asserted his percentage of whole person impairment was 11%. This percentage was based on an opinion of occupational physician Dr Peter Sharman and psychiatrist Dr Michael Evenhuis.
2 The evidence before the Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal was largely uncontentious. There was no issue that the appellant had sustained an injury to his cervical spine and post-traumatic stress disorder; that these were suffered as a consequence of the assault on 28 January 2007; that he had sustained permanent impairment, and that he was entitled to lump sum compensation. The whole person impairment for the cervical spine was agreed at 5% in accordance with the assessment of Dr Sharman, and the Chief Commissioner found accordingly. Dr Evenhuis assessed permanent psychiatric impairment at 6% whole person impairment, and psychiatrist Dr Phillip Reid's assessment was 5% whole person impairment. The Commissioner preferred Dr Evenhuis's assessment of 6%. There is no criticism of that factual finding on appeal.
3 The Chief Commissioner determined that the appellant was only entitled to recover lump sum compensation for his cervical spine injury. He held that, in light of the statutory provisions governing claims for lump sums for permanent impairment, the PTSD must be disregarded in the assessment. The Commissioner's determination turned on his construction of the Act, in particular ss 71 and 72. The Commissioner concluded that the impairment resulting from the PTSD of 6% whole person impairment was not compensable because it fell below a statutory threshold relating to psychiatric impairments of 10%. Even if it had exceeded the threshold, it could not have been combined with a physical impairment in assessing whole person impairment. The Chief Commissioner's determination was that the appellant was only entitled to lump sum compensation for his cervical spine injury, an amount of $10,164.24.
4 The appellant asserts the Commissioner made errors of law in his determination, that the whole person impairment for PTSD should be included in the overall assessment, and that the amount he was entitled to was $28,460.38.
5 In all other respects, the uncontroversial findings of the learned Commissioner meant there was no bar to the PTSD being a basis for the purpose of assessing whole person impairment. The Commissioner found the PTSD was an illness of the mind or a disorder of the mind, and thus amounted to a "psychiatric impairment" as defined by the Act, s 3; the PTSD is a primary not a secondary disorder for the purpose of the Act, which is critical to an entitlement for lump sum compensation in the case of psychiatric impairment (s 72(2)(a)); the assessments of whole person impairments were conducted by accredited assessors for the purpose of the Act and both psychiatrists applied the relevant Guidelines which govern the assessment of mental and behavioural disorders impairment.
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6 The appeal raises questions of statutory interpretation, particularly the overarching issue concerning whether the Tribunal erred in its construction of ss 71 and 72 of the Act.
7 The appeal was listed for hearing before Estcourt J. On 5 September 2019 his Honour ordered pursuant to r 703(4) of the Supreme Court Rules 2000 that the appeal be referred for
determination by the Full Court.
Statutory provisions
8 The liability of employers to compensate workers under the Act arises from s 25 of the Act. This is foundational to liability for any form of compensation under the Act, whether it be weekly payments, medical expenses or lump sum compensation. Section 25(1) provides as follows:
"25 Liability of employers to compensate workers for injuries (1) If in any employment –
(a)
a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or
(b)
a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) –
his employer is, except as is otherwise provided by this Act, liable to pay
compensation in accordance with this Act –(c) to the worker; or
(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."
9 Section 3 of the Act provides an extended meaning of "injury" expressed as including a disease, and "disease" is defined as meaning any "ailment, disorder, defect or morbid condition, whether of sudden or gradual development". It can be seen from s 25(1) that there are two different tests for whether an injury is compensable depending on whether the injury is a disease. Section 25(1)(b) provides that if the injury suffered by a worker is a disease, the employer is liable to pay compensation under the Act providing the "employment contributed to a substantial degree" within the meaning of s 3(2A). Section 3(2A) provides that "for the purposes of this Act, employment contributed to a disease to a substantial degree only if it is the major or most significant factor".
10 Assuming an employer is liable under the Act, by virtue of s 25, the question of whether a worker is entitled to lump sum compensation turns on ss 71 and 72 of the Act. These provisions at the material time provided:
"71 Compensation for permanent impairment (1) The amount of compensation payable under this section to a worker who
suffers permanent impairment resulting from an injury which entitles the worker tocompensation under this Act is to be calculated as at the date of the injury as follows:
(a)
subject to paragraph (d), a worker who suffers permanent impairment assessed at a percentage of the whole person of less than 5% is not entitled to compensation under this section;
(b)
a worker who suffers permanent impairment assessed at a percentage of the whole person of between 5% and 70%, inclusive, is entitled to compensation calculated in accordance with the following formula:
{18+[5.4x(WPI-5)]}xBS
where–
WPI is the percentage of whole person impairment;3 No 2/2021
BS is the basic salary;
(c)
a worker who suffers permanent impairment assessed at a percentage of the whole person equal to more than 70% is entitled to compensation of 369 units;
(d)
a worker who suffers permanent impairment in the form of the loss of part, or all, of a finger or toe and that impairment is assessed at a percentage of the whole person of less than 5%, the worker is entitled to compensation calculated in accordance with the following formula:
3.2xBSxWPI
where–
WPI is the percentage of whole person impairment;
BS is the basic salary.
(2) The amount of compensation payable under this section to a worker who suffers permanent psychiatric impairment which entitles the worker to compensation under this Act is to be calculated as at the date of the injury as follows:
(a)
a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of less than 10% is not entitled to compensation under this section;
(b)
a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of between 10% and 70%, inclusive, is entitled to compensation calculated in accordance with the following formula:
{18+[5.4x(WPI-5)]}xBS
where–
WPI is the percentage of whole person impairment;BS is the basic salary;
(c) a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person equal to more than 70% is entitled to compensation of 369 units."
11 It can be seen that s 71 provides threshold percentage permanent impairments which must be met before a worker is entitled to lump sum compensation. It also provides the formula to be applied in assessing the amount of compensation payable to a worker.
| 12 | Section 72 of the Act concerns assessment of degree of impairment and provided as follows: "72 Assessment of degree of impairment |
(1) An assessment of a degree of impairment is to be undertaken by a medical assessor in accordance with –
(a) any relevant guidelines issued by the Board; or (b) if there are no such guidelines, the AMA Guides; or (c)
if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, any method as may be prescribed.
(2) In assessing a degree of impairment of an injury –
(a)
regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury; and
(b)
the degree may comprise a combination of impairments arising out of the same incident or occurring on the same date assessed together using the combination tables in the AMA Guides; and
(c)
if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed separately; and
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(d) an impairment arising otherwise than from the injury is to be disregarded."
13 It can be seen that s 72 refers to guidelines issued by the Board. Section 71A provides that the Board may issue guidelines in relation to the assessment of the degree of impairment, provides for publication of them and their commencement. Section 71A(4) states that the guidelines have effect for the purposes of determining how an assessment of the degree of impairment of an injury is to be made.
14 The relevant guidelines for the purpose of s 72 at the material time are as follow:
Version 3
Forward"WorkCover Tasmania Guidelines for the Assessment of Permanent Impairment payment of lump sum compensation to a worker who suffers permanent impairment as a result of a work-related injury. Lump sum compensation may only be awarded where the degree of whole person impairment (WPI) is at least 5% in the case of physical injury other than an injury involving the loss of a finger or toe, and at least 10% in the case of psychiatric impairment.
Paragraph 1.34
Psychiatric impairment is assessed in accordance with Chapter 7 of these Guidelines.Paragraph 7.1 impairment is entitled to lump sum compensation if the level of whole person impairment is assessed at not less than 10%. It should be noted that this threshold is different to that applying for physical impairment."
The overarching issue
15 The appellant submits that the Tribunal erred in excluding his psychiatric impairment. Section 71(2) only applies to a limited and specific case, where the only permanent impairment from the compensable injury within the meaning of s 25 is psychiatric impairment. Where the impairments resulting from the compensable injury are both physical and psychiatric, subs (1) applies. The terms of s 71(1) are broad enough to encompass both psychiatric impairment and physical impairment. Providing the impairments in combination meet the statutory threshold of 5%, then the impairments may result in lump sum compensation.
16 The respondent contends that the purpose and object of ss 71 and 72 is to impose separate thresholds for physical and psychiatric impairment. If a psychiatric impairment does not meet the threshold of 10% whole person impairment, it cannot be taken into account and it cannot be combined with a physical impairment to meet the 5% threshold in s 71(1). Both parties relied on matters regarding the text and structure of the section to draw support for their contentions, as well as the consequences of the competing interpretations.
17 The guiding considerations in interpreting the provisions are the text used and its context, as explained by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]. The task of interpreting a statute must begin with a consideration of its text whilst at the same time, regard must be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 per Kiefel CJ, Nettle and Gordon JJ). Context includes the general purpose and policy of the legislation and the mischief it is seeking to remedy. Context should be considered at this first stage and not only if there is thought to be some ambiguity. The court must prefer a construction that would promote the underlying purpose or object of the provisions in question: Acts Interpretation Act 1931, s 8A.
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18 There are some matters that are immediately plain from reading s 71. It is concerned with lump sum compensation for permanent impairment. The two subsections each set a statutory threshold for entitlement to compensation for permanent impairment. Section 71(1) is a general provision while s 71(2) is specific, relating to psychiatric impairment. The intention and purpose of s 71 is evidently to set a higher threshold for entitlement to lump sum compensation in the case of psychiatric impairment. It can be seen that the formula to be used for calculating lump sum compensation in the case of "permanent impairment" assessed as a percentage of the whole person is the same as that for "permanent psychiatric impairment".
19 It is argued for the respondent that the proper meaning of s 71(1) is that it refers exclusively to physical impairment. It is necessary to consider the words "permanent impairment resulting from an injury". These words are to be contrasted with the language of s 71(2) which refers to "permanent psychiatric impairment". The phrase "resulting from an injury" is not included and it might be thought this has significance and that the meaning of "injury" conveys physical conditions and excludes psychiatric conditions.
20 The language of subs (1) and the phrase "resulting from injury" does not seem to me to refer only to physical conditions. They are words of generality. "Injury" has an extended meaning under the Act and includes disease, which obviously includes a disease of the mind as well as the body.
21 The Chief Commissioner considered the meaning of "injury" in s 71, and had regard to the history of the provision, a decision of the Full Court of Tasmania in FAI v Morrison (1993) 2 Tas R 9 and consideration given to the meaning of "injury" in s 25(1) and a decision of the Deputy President of the New South Wales Workers Compensation Commission in OneSteel Ltd v Devine [2012] NSWWCCPD 52 at [25]–[26]. Drawing on the principles articulated in these two cases the Chief Commissioner stated:
"84 …, s71(1) provides compensation is payable to a worker who suffers permanent impairment resulting from an injury which entitles a worker to compensation under the Act and which is to be calculated as at the date of the injury as set out in accordance with subsections (1)(a) through to (d). The term 'injury' first occurring in s71 means the injury which causes the impairment whether it be the original injury or a medical condition which later develops as a consequence of the original injury. The term 'injury' second occurring means the original injury because the date of that injury is the date upon which liability to pay compensation vests."
22 This approach has not attracted any criticism, and I respectfully consider it to be sound. Ultimately, for other reasons, the Chief Commissioner construed "permanent impairment resulting from an injury" in s 71(1), to mean physical injury, and I will consider those reasons later.
23 Before leaving the meaning of "injury", I add that there is strong support for construing "injury" as including psychiatric injury to be found in the wording of s 72(2). The subsection begins with "In assessing a degree of impairment of an injury" and significantly goes on to exclude psychiatric or psychological injury arising as a consequence of, or secondary to the physical injury. Clearly in that context, injury includes psychiatric injury and is dealt with there as a type of injury.
24 It is argued for the respondent that a dichotomy between physical and psychiatric conditions is consistent with the Act generally, in particular, s 25(1). As mentioned, s 25(1) is concerned with foundational liability for compensation under the Act, while s 71 is concerned with compensation for impairment resulting from the injury. I accept there is the dichotomy in s 25(1) between an injury not being a disease and an injury which is a disease. "Injury" is defined as including disease of any kind. However the dichotomy in s 25(1) does not flow to s 71. Psychiatric impairment receives different treatment in s 71(2) but not disease per se. It is undoubtedly the case though that s 25(1) is important context when construing ss 71 and 72.
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25 If subs (1) existed in isolation, there would be no question that psychiatric impairment was encompassed within the broad and general phrase "permanent impairment resulting from an injury". The difficulty lies in the presence and implications of subs (2).
26 As can be seen the term "psychiatric impairment" appearing in s 71(2) is defined under the Act as an illness or disorder of the mind. "Disease" is defined as an ailment, disorder, defect, or morbid condition. If the psychiatric impairment is a disorder then it is a disease and, presumably, as an illness it would qualify as a disease as well, as it would properly be regarded as an ailment, disorder, defect, or morbid condition.
27 Having regard to the Act as a whole, for a "psychiatric impairment" to be compensable by way of lump sum compensation, the requirements of s 25(1) must first be met. The worker must have suffered an injury, being a disease, and it is necessary that his or her "employment contributed to a substantial degree". By virtue of s 71(2), the impairment must be permanent and then there is the 10% WPI hurdle.
28 I return to the difference in the wording of s 71(1) "permanent impairment resulting from an injury which entitles the worker to compensation under this Act" contrasted with s 71(2) "permanent psychiatric impairment which entitles the worker to compensation under this Act". I note again the definition of "psychiatric impairment" and that it is defined as meaning an illness of the mind or disorder of the mind.
29 I do not see the contrast in wording to be significant. In particular, there is no significance to be attached to the absence of the words "resulting from an injury". This requirement of "resulting from an injury" is part of the setting of s 71(2) and implicit. Section 71(1) deals with cases of permanent impairment generally, while subs (2) has devolved to a particular type of impairment, psychiatric impairment, as a special category of that which is dealt with generally in subs (1). Quite simply when s 71(2) is read in the context of the general provision of subs (1) there is no need to repeat that requirement. Further, the language of both subsections harks back to s 25(1): "which entitles the worker to compensation under this Act". The worker with a psychiatric impairment would not be entitled to compensation under the Act, specifically, s 25(1), unless he had suffered an injury which is defined to include a disease which in turn includes a disease of the mind.
30 Plainly the concern of the definition of "psychiatric impairment" is to define the psychiatric component of the term in order to distinguish it from other types of impairment. I do not regard the equating of impairment with a disease of the mind as significant. Obviously, a disease of the mind would only be compensable if impairment has resulted over and above the disease. This can be seen from the Guidelines and the Psychiatric Impairment Rating Scale (to be applied by virtue of par 7.4 of Ch 7 of the Guidelines and set out at par 7.9 of the Guidelines) used to assess psychiatric impairment. Areas of function which are to be assessed include self-care and personal hygiene, social and recreational activities and social functioning. A psychiatric condition per se without giving rise to functional impairment would not be compensable.
31 The terms of s 71(1) and the natural and ordinary meaning of the language in that subsection are broad enough to encompass "psychiatric impairment" as defined under the Act. Permanent impairment resulting from an injury may be psychiatric impairment involving an illness or disorder of the mind resulting from an injury.
32 The structure of s 71 deals with the general in subs (1) "permanent impairment resulting from an injury" and with the specific in subs (2), psychiatric impairment. In this way, the threshold in subs (2) is an exception to the general threshold in subs (1). The principle of statutory interpretation applies that where there are provisions of a general nature and also provisions relating to a particular subject matter, the drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically: Refrigerated Express Lines (A'Asia) Pty Ltd
7 No 2/2021
v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347. This principle that the special limits the general, is known as the generalia specialibus non derogant principle. It is perhaps worth pointing out that this principle arises from the existence of general and special provisions. The consequence of the principle is that in some circumstances, the special prevails. It does not alter the meaning of the words in the general provision. The general provision of s 71(1) is still a general provision with an exception in subs (2) where applicable.
33 The irresistible conclusion is that subs (2) of s 71 applies where the impairment is a psychiatric impairment and in those special circumstances, subs (1) does not have application.
34 The argument for the appellant is that subs (2) applies to the specific situation of a psychiatric impairment as the only impairment, and in cases where the worker suffers a combination of physical and psychiatric impairments, subs (1) applies. For the following reasons, I do not accept that argument.
35 The first reason is the statutory principle I have just referred to. As a result of the principle, the general provision in s 71(1) does not apply to psychiatric impairment.
36 Section 71 is (amongst other things) a gateway provision for lump sum compensation. It provides a somewhat simplistic fork in the road: permanent impairment that is not psychiatric impairment and psychiatric impairment. There is a hurdle which must be overcome for each road. Therefore, a psychiatric impairment cannot contribute to the hurdle in subs (1) because subs (1) does not apply to psychiatric impairment. This is fatal to the appellant's argument.
37 It may be noted that subs (1) encompasses multiple physical impairments and likewise, multiple psychiatric impairments are encompassed under s 71(2). Words in the singular include the plural: Acts Interpretation Act 1931, s 24(d). As will be seen, the question of combining these types of impairments is accommodated in a different context.
38 An additional reason for rejecting the appellant's argument lies in the evident purpose of the provision. Undoubtedly, it was the purpose of the legislature to impose a more stringent threshold for psychiatric impairment than impairment generally. That message is pronounced loud and clear by the terms of subs (2). It is at odds with the purpose of the section to allow psychiatric impairment to be taken into account to make up the threshold of 5% in subs (1). A consequence of the appellant's argument is that a person would be entitled to lump sum compensation under subs (1) if they had a psychiatric impairment assessed as WPI of 4%, together with WPI of just 1% resulting from physical impairment. The evident object and purpose of s 71(2) is a compelling factor counting against the appellant's argument.
39 The respondent relies on the word "section" in subs (2) as revealing that subs (1) does not apply to psychiatric impairment. Subsection (2) provides "the amount of compensation payable under this section to a worker who suffers permanent psychiatric impairment". Further, par (a) of subs (2) provides that "a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of less than 10% is not entitled to compensation under this section". The respondent argues the reference to "section" means that unless the threshold of 10% is met, there is no entitlement for compensation for psychiatric impairment under either subsection.
40 There are good reasons for not taking an overly strict and literal approach. If such an approach was taken, it would lead to the result that a worker who suffers permanent psychiatric impairment of less than 10% would be disentitled to lump sum compensation under subs (1), notwithstanding the fact that the worker has a physical impairment that meets the 5% threshold. The terms of s 71(2) are based on the premise that the impairment under consideration is a psychiatric impairment. I consider that the effect of s 71(2) is that the worker is "not entitled to compensation under this section with respect to permanent psychiatric impairment".
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41 Regardless of the meaning of "section", I reject the proposition that psychiatric and physical impairments may be combined for the purpose of meeting the 5% threshold in s 71(1) while subs (2) applies to psychiatric impairment when it is the only impairment. As I have said, this proposition flies in the face of the evident purpose of s 71(2) and also the principle of statutory construction that I have discussed.
42 Before leaving s 71, I have given consideration to what can be gleaned from its terms in relation to the respondent's argument. It can be seen that s 71 provides for two types of impairment, physical and psychiatric and a threshold for each, but does not provide for a combination of psychiatric impairment and physical impairment. I regard silence on this matter as equivocal. I do not infer from the terms of s 71 that if a worker suffers both physical and psychiatric impairment that both thresholds must be met. It is just as feasible that Parliament did not intend to deal with that scenario in s 71 and that it was intended that only one of the thresholds need be met.
43 Section 72(2) assumes significance in assessing a combination of impairments. It provides in
par (b):
"(2) In assessing a degree of impairment of an injury –
(a) …
(b) the degree may comprise a combination of impairments arising out of the same incident or occurring on the same date assessed together using the combination tables in the AMA Guides; and ...".
44 The terms are cast in general terms regarding impairments that may be combined. It can be seen that s 72(2)(b) does not exclude psychiatric impairment. There are exceptions in s 72(2)(a) and (d) but they do not apply here.
45 The ordinary and natural meaning of the text in s 72 allows for psychiatric impairment to be combined with physical impairment. It may be noted that the "relevant guidelines, issued under section 71A", in particular, the combination tables in the Guidelines, allow for combining in this way.
46 Reading the text of ss 71 and 72 in a common sense fashion and giving the language of the provisions their natural meaning, it seems to me that the sections should be construed in the following way. There are two thresholds that apply by virtue of s 71, depending on whether the impairment is physical or psychiatric. There is no provision for a combination of those impairments. However, once either of those hurdles is met, the provision that is made for a combination of impairments to be assessed together would allow a psychiatric and a physical impairment to be combined. Section 72(2)(b) allows combining in unqualified terms, except that the impairments must arise out of the same incident or occur on the same date. The consequence of this approach is that if the hurdle in s 71(1)(a) is overcome with reference to a physical impairment, then it may be combined with a psychiatric impairment regardless of whether the 10% hurdle for psychiatric impairment is met. The natural flow of the sections accords with this approach in providing for entitlement and the formula and then directions as to how the assessment of the degree of impairment for the purpose of the formula is to be assessed. In this case, s 71(1)(a) applies as the threshold of 5% for physical impairment has been met, and then by virtue of s 72(2) psychiatric impairment may be combined to produce an accurate assessment of degree of WPI.
47 The Chief Commissioner held that the word "injury" in s 72(2) is referring to an injury under s 71(1) and does not apply to psychiatric impairment. A key aspect of his Honour's reasoning is:
"102 In addition s71(2)(a) is specific in nature so any conflict between the wording of s71(1)(a) and 71(2)(a) can be resolved by the general provision that is s71(1)(a) giving way to the more specific provision; ie s71(2)(a). Accordingly the reference to injury in s71(1) should be read as excluding an illness of the mind or disorder of the mind which is specifically dealt with under s71(2)(a)."
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48 The learned Chief Commissioner read the word "injury" in s 72(2) as referring to the injury in s 71(1). At [111] he stated: "That is s72(2) only applies to the permanent impairment being considered under s 71(1); ie it does not apply to permanent psychiatric impairment. This, in my view, fits the scheme of the Act where impairments of a psychiatric nature are dealt with separately from physical impairments."
49 I respectfully find the Chief Commissioner's approach strays beyond what can be legitimately surmised about the "scheme" of the Act. The scheme provides for a higher threshold for psychiatric impairment, but still provides for a combining of psychiatric and physical impairments. Also, I cannot accept that the meaning of s 72 is so obtuse. The term "injury" in s 72(2) has a defined meaning under the Act. It is not qualified in the context of this section and I do not see that there is any justification for attributing a different meaning to it. Furthermore, as I mentioned above at [23], the words in s 72(2)(a) demonstrate that injury is a broad term embracing psychiatric injury.
50 The meaning the Chief Commissioner gave to the term is designed to accord with the attributed meaning of injury in s 71(1). However this approach is erroneous. As I have pointed out, just because the general provision of s 71(1) must give way to the special provision relating to psychiatric impairment does not mean that that the words of the general provision must be attributed a meaning in order to contrive that result of giving way. That is simply not necessary. The giving way follows from the structure of the section and the existence of the special provision.
51 I conclude the word "injury" in s 71(1) is not qualified and retains its general meaning as
defined under the Act.
52 The argument of the respondent is that it is proper to combine psychiatric and physical impairments under s 72(2) providing that both impairments meet their respective thresholds. In fact, this should be done as the prescribed method involving the combined values chart ensures that the worker is not overcompensated (this would result if the Act was construed so that the impairments had to be assessed separately and each gave rise to a lump sum). On this argument, the line between psychiatric impairment and physical impairment becomes blurred at assessment stage. The implication of the respondent's position is that the calculation of compensation involving an assessment in the case of combined impairments cannot take place purely within either subss (1) or (2) of s 71. According to the respondent's argument, neither subsection can apply to both physical and psychiatric impairment. It can be seen that there are matters in common with the approach I have taken. In essence, I consider that ss 71 and 72 are speaking to different aspects of the process. Section 71 presents two gateways to entitlement to lump sum compensation and provides the formula to be applied. Section 72 is concerned with assessment of the degree of impairment and provides for combining impairments. In this context of combining impairments, the line drawn in s 71 is blurred. I should add that just because the focus of the two sections is different is not to suggest they operate independently, or that they apply in some sequential fashion. Section 72 provides the figure for WPI for the purpose of each formula in s 71.
53 I accept it is possible to give effect to the provisions so that they are interpreted as they have been by the respondent so that both types of impairments must reach their respective thresholds before they may be combined for the purpose of assessing the degree of impairment. There is ambiguity. There are factors that assist in resolving this ambiguity. If it was intended that in combining psychiatric and physical impairments the respective thresholds must each be met, I would expect the legislature to have expressly said so in plain terms. Faced with ambiguity, there is the additional consideration that this is beneficial legislation, and should be construed in favour of the worker to the extent that a fair reading of the language of the section allows: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Bird v The Commonwealth (1988) 165 CLR 1 at 9; Attorney-General for Tasmania v L, C [2018] TASFC 6, 28 Tas R 70 at [37].
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54 It is acknowledged that this principle does not mean the court is at liberty to give a construction that is unreasonable or unnatural in order to yield a benefit to workers: IW v City of Perth (1997) 191 CLR 1 at 11.
55 It seems to me that the approach I have taken is reasonable and a natural fit with the object of s 71 to impose a general threshold for permanent impairment and a more stringent condition if the impairment results from a psychiatric condition, but also consonant with an objective evident from s 72(2) of providing for a comprehensive and holistic assessment of impairment resulting from an injury once a worker qualifies for lump sum compensation under s 71.
56 If this approach is taken, it would arguably permit a psychiatric impairment of 10% to be combined with a physical impairment of less than 5% to be taken into account in assessing WPI. While I do not need to decide this point, I cannot see any statutory indication that this was not intended.
57 As noted, there is no bar to the approach I have taken in the language of the provisions. The combined values chart referred to in 1.42 of the Guidelines and to be found at 322-324 of AMA 4 Guides, and described as the "combination tables in the AMA Guides" in s 72(2) allow for it. The formulas for calculating impairment as set in s 71(1) and (2) are the same regardless of the type of impairment and so there is no practical difficulty that arises in that regard.
58 Extrinsic materials such as the Second Reading Speech with respect to the Workers Rehabilitation and Compensation Amendment Bill 2000 which amended s 71 were relied upon by the appellant and the respondent but need not be traversed. They do not take the debate further than demonstrating an intention to create separate thresholds for physical and psychiatric impairment. More broadly, the intention in amending s 71 was to replace the "outdated" Table of Maims method of assessing permanent impairment and replacing it with a new method of assessing permanent impairment through the use of medical guidelines (Tasmania, Parliamentary Debates, House of Assembly, 23 November 2000, 9-10). The Second Reading Speech does not assist with the nuanced question of statutory interpretation that arises here of access to lump sum compensation involving a combination of psychiatric and physical impairments once the physical impairment threshold has been met.
59 In conclusion, I reject the appellant's contention. The operation of s 71 and the evident purpose of s 71(2) are telling factors against the interpretation that the threshold in subs (1) of 5% can be met by combining psychiatric and physical impairments. I also reject the respondent's construction.
60 Section 72(2) expressly allows for a combining of impairments for the purpose of assessment, and the section is in wide enough terms to allow for psychiatric and physical impairments to be combined. It does not convey that this is only permitted in the case of psychiatric impairment and physical impairment if both types of impairment meet the respective thresholds. Once the threshold in either subss (1) or (2) is met, then s 72 permits combining impairments without requiring the threshold to be met for each impairment.
61 I conclude that the appellant is entitled to lump sum compensation because he has met the 5% threshold in relation to his cervical spine injury. Section 72(2) allows that to be combined with his psychiatric impairment and does not require that the threshold pertaining to psychiatric impairment must be met. The assessment after combining the impairments yields a degree of WPI of 11%.
62 There are a number of grounds of appeal addressing the overarching issue in varying forms of specificity. I have found the Tribunal erred in its construction of ss 71 and 72. Ground 8 addresses the error and is made out:
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"The Tribunal erred in law in concluding that for the purpose of determining the appellant's entitlement to recover lump sum compensation pursuant to section 71 of the Act, the permanent impairment of 5% for the cervical injury and 6% for the PTSD should not be combined pursuant to section 72 of the Act to arrive at the whole person impairment percentage."
It is unnecessary to canvass the remaining grounds.
63 For the reasons I have given, I would allow the appeal, set aside the order of the Chief Commissioner dated 11 April 2019 that "the employer pay compensation to the worker, pursuant to s71 of the Act, in the sum of $10,164,24 which sum represents a permanent impairment assessed at a percentage of the whole person of 5%.", and I would hear from the parties as to consequential orders. The learned Chief Commissioner is no longer a member of the Tribunal, having been appointed as a magistrate. Rather than remitting the question for determination by a differently constituted tribunal, it may be appropriate to make a substituted order: Supreme Court Rules 2000, rr 693(8), 709(1).
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File No 1019/2019
DENNIS STEPHEN COAD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT GEASON J 17 February 2021 |
64 I have read the reasons of Wood J. I agree with her Honour's reasons for upholding the
appeal.
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File No 1019/2019
DENNIS STEPHEN COAD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT MARTIN AJ (Dissenting) 17 February 2021 |
| Introduction |
65 On 28 January 2007 the appellant was assaulted and injured during the course of his employment as a police officer with the respondent. The appellant suffered an injury to his cervical spine and a post-traumatic stress disorder (PTSD).
66 It is common ground that the appellant is entitled to lump-sum compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 (the Act). The Chief Workers Rehabilitation and Compensation Commissioner (Chief Commissioner) (the Tribunal) determined that the appellant was entitled to $10,164.24 in lump sum compensation under s 71 of the Act. This figure reflected a determination that the appellant suffered from a 5% permanent physical impairment of the whole person. The Tribunal determined that it was prohibited by s 71(2)(a) from taking into account a 6% permanent psychiatric impairment.
67 Although the grounds of appeal assert that the Tribunal erred in a number of respects, at the heart of the appeal is the interpretation of ss 71, 71A and 72 of the Act. The appellant contends that his permanent impairment should have been assessed at 11%, leading to an award of $28,460.38 in lump sum compensation.
68 For the reasons that follow, in my opinion the appeal should be dismissed.
| Facts | |
| 69 | The essential facts found by the Tribunal are not in dispute: |
• On 28 January 2007, the appellant was assaulted whilst performing duties as a police officer. •
As a consequence of the assault, the appellant suffered an injury to his cervical spine, and PTSD which was a primary, and not a secondary, disorder.
• The injury to the appellant's cervical spine resulted in a 5% permanent physical impairment. • The PTSD resulted in a 6% permanent psychiatric impairment.
Statutory provisions
70 The liability of employers to compensate workers for injuries sustained in the course of employment is established by s 25 of the Act. As Porter J expressed the position in Fishpool v Incat Tasmania Pty Ltd[1], s 25 "creates a form of inchoate or foundational liability."
[1] [2013] TASFC 6 at [4]71 Section 25(1) is as follows:
"25 Liability of employers to compensate workers for injuries (1) If in any employment –
(a)
a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or
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(b)
a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) –
his employer is, except as is otherwise provided by this Act, liable to pay
compensation in accordance with this Act –
(c) to the worker; or
(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."
72 "Injury" is not defined. As Zeeman J pointed out in Pasminco Australia Ltd v Fairchild[2], the word must be given its "ordinary meaning as indicating harm, detriment or damage" [9], a meaning which could encompass a "disease". His Honour observed, however, that such a view would make nonsense of s 25(1), and the wording of s 25(1) evinced a legislative intention "to create two categories of injury, each of them compensable but with a question of the entitlement to compensation being determined according to different tests".
[2] [1990] TASSC 61.73 Section 3 provides that "injury" includes a "disease", and "disease" is defined as meaning "any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development". "Psychiatric impairment" is defined as meaning "an illness of the mind or a disorder of the mind". Hence psychiatric impairment is a "disease" because it is a "disorder" of the mind; and psychiatric impairment is, therefore, an "injury".
74 Section 25(1)(b) provides that if the "injury" suffered by a worker is a "disease", the employer is liable to pay compensation, but only if the employment "contributed to a substantial degree" to the disease. Section 3(2A) specifies that employment contributes to a disease to a substantial degree "only if it is the major or most significant factor".
75 These provisions provide the essential context for a consideration of ss 71 and 72 which are critical to the outcome of this appeal. They concern lump sum compensation. As Porter J observed in Fishpool at [3], s 71, and other sections, provide for "the types of compensation payable where an employer is liable under s 25."
76 At the time of the injury, the relevant provisions in ss 71 and 72 were as follows:
"71 Compensation for permanent impairment (1) The amount of compensation payable under this section to a worker who
suffers permanent impairment resulting from an injury which entitles the worker to
compensation under this Act is to be calculated as at the date of the injury as follows:
(a)
subject to paragraph (d), a worker who suffers permanent impairment assessed at a percentage of the whole person of less than 5% is not entitled to compensation under this section;
(b)
a worker who suffers permanent impairment assessed at a percentage of the whole person of between 5% and 70%, inclusive, is entitled to compensation calculated in accordance with the following formula:
{18+[5.4x(WPI-5)]}xBS
where–
WPI is the percentage of whole person impairment;
BS is the basic salary;15 No 2/2021
(c)
a worker who suffers permanent impairment assessed at a percentage of the whole person equal to more than 70% is entitled to compensation of 369 units;
(d)
a worker who suffers permanent impairment in the form of the loss of part, or all, of a finger or toe and that impairment is assessed at a percentage of the whole person of less than 5%, the worker is entitled to compensation calculated in accordance with the following formula:
3.2xBSxWPI
where–
WPI is the percentage of whole person impairment;
BS is the basic salary.
(2) The amount of compensation payable under this section to a worker who suffers permanent psychiatric impairment which entitles the worker to compensation under this Act is to be calculated as at the date of the injury as follows:
(a)
a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of less than 10% is not entitled to compensation under this section;
(b)
a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of between 10% and 70%, inclusive, is entitled to compensation calculated in accordance with the following formula:
{18+[5.4x(WPI-5)]}xBS
where–
WPI is the percentage of whole person impairment;BS is the basic salary;
(c) a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person equal to more than 70% is entitled to compensation of 369 units. 72 Assessment of degree of impairment
(1) An assessment of a degree of impairment is to be undertaken by a medical assessor in accordance with –
(a) any relevant guidelines issued by the Board; or
(b) if there are no such guidelines, the AMA Guides; or
(c)
if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, any method as may be prescribed.
(2) In assessing a degree of impairment of an injury –
(a) regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury; and (b) the degree may comprise a combination of impairments arising out of the same incident or occurring on the same date assessed together using the combination tables in the AMA Guides; and (c) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed separately; and (d) an impairment arising otherwise than from the injury is to be disregarded."
77 As is apparent, s 71 is not limited to the methodology to be used in assessing the amount of lump sum compensation payable to a worker where an employer is liable to pay compensation under s 25. Speaking broadly, s 71 also provides threshold percentage permanent impairments, below which a worker is not entitled to lump sum compensation under s 71.
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78 Section 71A of the Act provides that the WorkCover Tasmania Board (the Board), established under the Act, may issue guidelines in relation to the assessment of a worker's degree of impairment. Subsection (4) provides that until revoked, "the guidelines have effect for the purposes of determining how an assessment of the degree of impairment of an injury is to be made …". At the time of assessment, the relevant guidelines were as follows:
"WorkCover Tasmania Guidelines for the Assessment of Permanent Impairment
Version 3 ('the Guidelines')Foreword payment of lump sum compensation to a worker who suffers permanent impairment as a result of a work-related injury. Lump sum compensation may only be awarded where the degree of whole person impairment (WPI) is at least 5% in the case of physical injury other than an injury involving the loss of a finger or toe, and at least 10% in the case of psychiatric impairment…
Paragraph 1.34
Psychiatric impairment is assessed in accordance with Chapter 7 of these Guidelines.…
Paragraph 7.1
impairment is entitled to lump sum compensation if the level of whole person impairment is assessed at not less than 10%. It should be noted that this threshold is different to that applying for physical impairment."
79 The guidelines issued pursuant to s 71A substantially reflect the legislative provisions,
particularly s 71.
Discussion
80 The appellant's permanent physical impairment is 5% and, therefore, exceeds the threshold found in s 71(1)(a) of not less than 5%. However, his permanent psychiatric impairment is 6%, which is less than the threshold of 10% specified in s 71(2)(a). The Tribunal found that the appellant was entitled to an award based only on the 5% permanent physical impairment, and excluded the permanent psychiatric impairment from the assessment. The appellant submits that the Tribunal erred in excluding the psychiatric impairment and, under ss 71(1)(a) and 72(2), should have combined both the 5% physical and 6% psychiatric impairments to arrive at a total permanent impairment of 11%.
81 At various points in the submissions, counsel for the applicant placed significant emphasis upon the beneficial nature of the Act. On the other hand, the Tribunal appeared to give significant weight to the history of the legislation, particularly s 71. It is well settled, however, that the starting point is the "ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose".[3] In Alcan, the importance of the statutory text was also emphasised in the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ [47]:
"[47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of a context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." [Footnotes omitted.]
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[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27; French CJ [4].
82 Although the "foundational" liability of the respondent to pay compensation is created by s 25(1), the only route by which the appellant can qualify for payment of lump sum compensation is through s 71. In both subs (1) and (2), the legislature has referred to the amount of compensation payable "under this section", and to a threshold percentage permanent impairment below which a worker is not entitled to compensation "under this section". In my view, wherever those words are used in s 71, they refer to s 71 and not to a particular subsection. Throughout the Act, the legislature has chosen to use the expressions "under this section" and "under this subsection", plainly drawing a distinction between section and subsection. This view accords with s 7A of the Acts Interpretation Act 1931. If, in either s 71(1)(a) or s 71(2)(a), the legislature intended the threshold percentage impairment to apply only to the particular subsection involved, the words "under this subsection" would have been used rather than "under this section".
83 In essence, the appellant advanced the following contentions:
• On 28 January 2007, "the worker suffered both cervical injury and PTSD, each of which were compensable and caused some degree of permanent impairment." • "Each compensable injury resulted in 'conditions' within the meaning of the term 'an injury' in subs 71(1)" and that term "is not limited or distinguished between physical and psychiatric conditions." • Section 71(1) does not distinguish "permanent impairment" into two classes, physical and psychiatric. • Section 71(2) "only applied in a limited and specific case, where the only permanent impairment from the compensable injury within the meaning of s 25 is psychiatric impairment." Put another way, s 71(2) "operates to calculate the lump sum compensation payable only in the case where the compensable injury for the purpose of s 25 is one resulting in permanent psychiatric impairment alone". • "Where the impairments resulting from a compensable injury are multiple (which may be physical or psychiatric), subs 71(1) must operate." • In the case of the appellant, the threshold of 10% for permanent psychiatric impairment does not operate to exclude the psychiatric impairment from the assessment because the appellant has suffered a physical impairment which reaches the 5% threshold in s 71(1). In these circumstances, pursuant to s 72(2), and under s 71(1), the physical and psychiatric impairments should be combined to give an assessment of 11% permanent impairment of the whole person. 84 In more than one respect, the legislature has treated physical and psychiatric injuries differently. As discussed, for the purposes of the Act, PTSD and psychiatric impairment are treated as a disease. Section 25 established the liability of employers to pay compensation if a worker suffers a physical injury that arises out of or in the course of employment, but in the case of a disease liability is established only if the employment contributed to the disease to a substantial degree.
85 The distinction drawn by the legislature between a physical injury and an injury in the form of a disease is also apparent from a comparison between the introductory wording found in subss (1) and (2) of s 71. Section 71(1) is expressed as applying to a worker who suffers "permanent impairment resulting from an injury". Read in isolation from other provisions, s 71(1) would appear to apply to a worker who suffers any form of permanent impairment, including psychiatric impairment. In that situation, the PTSD would be regarded as the "injury" which resulted in a "permanent impairment" which was psychiatric in nature, rather than physical. This is the construction for which the appellant contended, but consideration of s 71(2) compels a different view.
86 The introductory wording of s 71(2) is significantly different. Unlike s 71(1) which refers to a worker who suffers permanent impairment "resulting from an injury", s 71(2) concerns a worker who
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"suffers permanent psychiatric impairment". Section 71(2) is specifically directed to the worker who
suffers an injury in the form of a disease.87 Further, the legislature distinguished between a "permanent impairment" under s 71(1), and a "permanent psychiatric impairment" in s 71(2), by fixing different thresholds, below which a worker is not entitled to lump sum compensation for the permanent impairment.
88 Specific provision having been made for a worker who suffers an injury in the form of a disease/permanent psychiatric impairment, it is difficult to find an intention to include such injury within subs (1) which applies to a worker who suffers "permanent impairment resulting from an injury". A permanent psychiatric impairment is not a permanent impairment "resulting from an injury". The permanent psychiatric impairment is, in itself, the injury in the form of disease.
89 What then of the operation of s 72(2) which provides that in assessing "a degree of impairment of an injury", the degree may "comprise a combination of impairments arising out of the same incident or occurring on the same date …"? If the appellant has suffered a permanent psychiatric impairment assessed at 10% or more, no difficulty would arise. In that event, the respondent concedes that the percentage psychiatric impairment could have been combined with the 5% physical impairment to arrive at an overall impairment of the whole person. However, as the threshold of 10% has not been met, the calculation could not be done under s 71(2), leaving s 71(1) as the only mechanism by which the combination could occur.
90 The mechanism upon which the appellant relies could only operate if the expression "permanent impairment resulting from an injury" in s 71(1) was construed as encompassing a permanent "psychiatric impairment". However, for the reasons discussed, in my opinion the expression "permanent impairment resulting from an injury" in s 71(1) does not encompass an injury in the form of a permanent psychiatric impairment (disease). The psychiatric impairment cannot be combined with the physical impairment under s 71(1).
91 In my view if different physical impairments result from an injury, even if one or more of those impairments, individually, does not meet the threshold of 5%, those individual physical impairments can be combined under s 71(1) to arrive at the "degree of impairment". If that degree achieves the 5% threshold, lump sum compensation is payable. Similarly, although it appears unlikely in view of the definition, if different psychiatric impairments existed, they could be combined under s 71(2).
92 This result might be unfortunate from the point of view of the worker, and it might not sit perfectly with the beneficial nature of the legislation. However, the result is not capricious. Nor does it significantly undermine the beneficial purpose of the Act. It is not surprising that the legislature would fix thresholds, below which a worker is not entitled to lump sum compensation. In particular, it is not surprising that the legislature would fix a threshold for psychiatric impairment, below which, notwithstanding the existence of physical impairments, the worker is not entitled to lump sum compensation for such psychiatric impairment.
93 The language used in s 71(2) is plain. A worker who suffers a permanent psychiatric impairment assessed as a percentage of the whole person of less than 10% "is not entitled to compensation" under s 71. It is a specific provision addressed to the circumstances of a worker who suffers an injury in the form of a disease/psychiatric impairment.
Grounds of appeal
94 A number of grounds of appeal were abandoned. Four of the remaining five grounds (3, 6, 8 and 9) all concern the interpretation of ss 71 and 72. It is unnecessary to canvass these grounds individually.
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95 Ground 10 asserts that the Tribunal erred in having regard to the second reading speech relating to amendments to the Act in 2000. I do not agree, but the issue is not of any significance.
96 There remains one aspect of the Tribunal's reasons upon which it is appropriate to comment. Having determined that the permanent psychiatric impairment could not be taken into account because it did not reach the threshold of 10%, the Tribunal expressed the opinion that there was "another argument" which brought about the same result. The Tribunal expressed that "argument" in the following terms [111]:
"That argument is to read the word injury in s 72(2) as referring to the injury in s 71(1). That is s 72(2) only applies to permanent impairment being considered under s 71(1); ie it does not apply to permanent psychiatric impairment. This, in my view, fits the scheme of the Act where impairments of a psychiatric nature are dealt with separately from physical impairments."
97 I do not agree with this view.
98 There is nothing in the wording of s 72, or its context, which suggests a legislative intention to restrict the operation of s 72(2) to assessment of a degree of impairment under s 71(1), to the exclusion of the assessment under s 71(2). For reasons associated with the definition of disease/psychiatric impairment, it may be unlikely that different injuries in the form of psychiatric impairment can be identified, but that possibility should not be excluded. Adopting the interpretation of s 71 which I have discussed earlier in these reasons, there is no impediment to applying s 72 to an assessment of the degree of impairment, both physical and psychiatric. Indeed, the respondent accepts that if the appellant's psychiatric impairment had reached the threshold of 10%, it could have been combined with the physical impairment pursuant to s 72(2) for the purpose of assessing the degree of impairment of the whole person.
99 For these reasons, in my opinion the appeal should be dismissed.
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