Field v Community Restorative Centre Limited
[2022] NSWPIC 204
•10 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Field v Community Restorative Centre Limited [2022] NSWPIC 204 |
| APPLICANT: | Justin Field |
| RESPONDENT: | Community Restorative Centre Limited |
| Member: | John Wynyard |
| DATE OF DECISION: | 10 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum in respect of a psychological injury and a cardiac condition: whether section 65A(4) of the Workers Compensation Act 1987 (1987 Act) applied; whether a consequential condition compensable under the workers compensation legislation; whether the terms of section 65A(4) of the 1987 Act included consequential condition in definition of injury; Held- the cardiac condition was an injury pursuant to s 4(b)(ii), and therefore section 65A of the 1987 Act was applicable: award respondent for that claim. |
| determinations made: | The aggravation of Mr Field’s cardiac condition was an injury as defined in s 4(b)(ii) of the Workers Compensation Act 1987, and attracts the disentitling provisions of s 65A(4) of the Workers Compensation Act 1987. |
| orders made: | There is an award in favour of the respondent in respect of the claim for lump sum regarding the physical injury. |
STATEMENT OF REASONS
BACKGROUND
Justin Field, the applicant, brings an action against Community Restorative Centre Limited, the respondent, for lump sum benefits sustained by primary psychological injury dated 3 January 2020 and a consequential cardiovascular condition, both causes of action having arisen on a deemed date of 3 January 2020.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Can the whole person impairment (WPI) assessment arising from the psychiatric condition be aggregated with the impairment caused by the alleged consequential condition.
(b) Do the two impairments arise from separate injuries?
(c) If so, does s 65A(4) of the Workers Compensation Act 1987 (the 1987 Act) disentitle the applicant from aggregating the said impairments?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
On 11 April 2022 a conciliation and arbitration telephone hearing was attended by Mr Steve Walker, Mr Kevin Sawers and Ms Jordana De Cruz from Messrs Walker Law Group, instructing Mr Bill Loukas of counsel. Mr Dean Pefani and Ms Pradesha Thomas from Messrs Turks Legal appeared for the respondent, instructing Ms Kavita Balendra of counsel. Also in attendance were Mr Mikhail Lacsina and Ms Patricia Galvan on behalf of the insurer, EML
In view of the nature of the claim, no conciliation was sought by either party. 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.
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.
Oral evidence
No application was made in relation to oral evidence.
FINDINGS AND REASONS
The claim
The applicant claimed in the ARD form that on a deemed date of 3 January 2020 he suffered a primary psychological injury arising out of or in the course of his employment with the respondent. The applicant also claimed that he had sustained “consequential cardiovascular injuries.”
The claim was for a lump sum pursuant to s 66 of the 1987 Act of $71,350 in respect of 26% WPI. The claim for the psychiatric injury was shown by the evidence to be for 21%, and that for the alleged consequential cardiovascular condition to be for 5% WPI.
The matter was listed for teleconference on 25 March 2022 when, by agreement, I referred the claim for psychiatric injury to a Medical Assessor (MA) for a WPI assessment, there being no denial of liability in that respect, save for the threshold of 15% being met.
The s 78 notice
The s 78 notice was issued on 19 November 2021. In the preamble, the following appeared:[1]
“Summary of decision
We are disputing that you are entitled to permanent impairment lump sum compensation for the claimed injury and consequential condition. This decision will take effect on 19 November 2021….”
[1] ARD p 10.
In the body of the decision a further summary was given which accepted liability for both ‘injuries’, but which claimed that neither reached the appropriate threshold:[2]
[2] ARD p 12.
Under the heading “Reasons for the decision”, the notice stated relevantly:[3]
“We have applied section 65A(4) of the Workers Compensation Act 1987 and assert that no compensation is payable as you can only make a claim against the bodily system which has the higher degree of permanent impairment arising from your accepted injury.
We do not believe that you are eligible for permanent impairment lump sum compensation because your cardiac condition (supraventricular tachycardia) has not resulted in more than 10% permanent impairment as required by section 66(1) of the Workers Compensation Act 1987.
We refer to your clam for lump sum compensation. You claim 26% WPI pursuant to section 66 of the Workers Compensation Act 1987 (NSW) ('1987 Act') for both a psychological injury sustained on 2 January 2020 as well as consequential cardiovascular condition. You rely on the report of Dr Abdal Khan dated 9 September 2021 and A/Prof Richard Haber dated 2 September 2021.”
[3] ARD p 12.
The third to last paragraph under that heading said[4]:
“It is of note that under section 65A(4) of the of the Workers Compensation Act 1987 you are precluded from claiming for both the psychological injury and the cardiovascular condition.
You must only rely on whichever injury results in the greater amount of compensation being payable. Therefore, we have applied section 65A(4) of the Workers Compensation Act 1987 and assert that you cannot combine your psychological and cardiac impairments.
In relation to your cardiac condition, we note that both A/Prof Haber and Dr Herman assessed you with 5% WPI. Accordingly, you do not satisfy the s66(1) threshold to claim lump sum compensation for your cardiac condition.”
[4] ARD p 13.
Factual background
Mr Field’s accepted psychological injury occurred after he experienced a number of traumatic incidents that occurred over a period of time during the course of his employment with the respondent. These incidents included the deaths of a number of clients by suicide or heroin overdose.
Mr Field also suffered from a heart condition. He said in his statement of 22 December 2021:[5]
“Since I was 18 years old, I have suffered from an underlying cardiac condition called supraventricular tachycardia ('SVT'). I often have an attack of palpitations occurring around once or twice a year. Since around 2019, these attacks became more frequent, occurring around four to five times a year, as a result of the immense emotional stress I was under whilst at work. Since January 2020, these frequent attacks persisted and I started experiencing a shortness of breath, perspiration and sometimes chest pain associated with the attacks. I feel the more frequented attacks were a result of the traumatic workplace incidents that occurred. Sometimes a cough would bring on these attacks and vice vera, or other times they occur for no apparent reason. These attacks would usually last for approximately half an hour but if it was longer then I would go to the hospital. From 2020 to date, I have been admitted to Royal Prince Alfred Hospital around 6 to 7 times for an injection to stop the attacks. Between January 2021 – June 2021 , I frequently experienced attacks of palpitations of which I associated with the
ongoing stress I have experienced since ceasing employment at Community Restorative Centre.
On 10 June 2021 I had ablation for these attacks which reduced the number of episodes I experience to around once a week. Now, when I suffer the occasional attack, it is short lived and involves a fluttering sensation for a few seconds at a time.”
[5] ARD p 2 [22].
Mr Field said that his psychological injury manifested itself on 3 January 2020, but that:[6]
“I have witnessed several traumatic events during the entire course of my employment. I would often have to witness other clients self-harming on the arms and neck. I would often see blood on the walls of client's homes, along with urine and faeces that I would have to clean up. This would also spark memories of traumatic incidents I had witnessed in other aspects of my life and led me to experience further anxiety and stress. Most days whilst at work, I had a depressed, low mood and was often crying which really affected my cognitive functioning.”
[6] ARD p 2 [21].
Medical evidence
As indicated, the psychiatric injury has been accepted. Suffice it to say that the psychiatric experts in the case agreed that Mr Field has suffered such an injury.
Mr Field retained the services of Associate Professor (Dr) Richard W Haber, Consultant Physician/Cardiologist, who reported on 2 September 2021.[7] The respondent’s expert was Dr Mark Herman, Cardiologist, who reported on 10 November 2021. The history taken by both experts was consistent with that of the applicant: Since age 18 Mr Field had palpitation attacks once or twice a year, these had been caused by paroxysmal supraventricular tachycardia, and the attacks had increased in frequency and duration since 2019 until the surgical procedure of an AVNRT ablation at Prince Alfred Hospital in June 2021 effectively cured his condition.
[7] ARD p 16.
Dr Haber advised:[8]
“He was getting recurrent attacks of palpitations due to SVT, which is supraventricular type of tachycardia. This a condition of fast beating of the heart without any obvious reason. In his case he had these attacks prior to his injury, but these attacks became more frequent and more severe, almost certainly due to his emotional state. There is thus worsening of a pre-existent tendency to attacks of SVT which were emotionally induced. This is due to an abnormal electric pathway within the heart.”
[8] ARD p 18.
Dr Haber’s summary said:[9]
“Mr Field had an occasional attack of SVT prior to his injury. As the result of the PTSD, the emotional reaction led to worsening of the attacks of his SVT. As a result of this he had to have ablation which was successful so that he only gets short lived minor and only very occasional attacks which will settle down almost certainly with time.”
[9] ARD p 19.
Dr Herman’s opinion was similar. He said:[10]
“Since 2019 and coincident with stress at work (diagnosed with PTSD and depression), he developed increasing frequency and duration of episodes. They began occurring on a 2-3 /month basis and lasting several hours in duration.”
[10] Reply p 6.
Dr Herman as asked to advise whether he believed Mr Field’s cardiovascular condition was causally connected to his initial psychological injury of 2 January 2020. Dr Herman answered:[11]
“I do believe that his psychological injury on 2 January 2020, aggravated his pre-existent predisposition to paroxysmal supraventricular tachycardia.
Emotional stress with the associated increased catecholamine drive, can provoke tachycardic episodes and the frequency and duration of his events worsened with his emotional stress.” (As written).
SUBMISSIONS
[11] Reply p 9.
Mr Loukas
Mr Loukas noted that the primary psychological injury was accepted in the s 78 notice, and he asserted that the physical condition was also agreed to be consequential to the psychological injury.
He said that three questions needed to be considered:
· Can the WPI assessment from the psychiatric injury be aggregated?
· Were the psychiatric injury and the injury to the cardiovascular system separate injuries?
· Do the provisions of s 65A(4) disentitle the applicant from aggregating the assessed impairments ?
Mr Loukas relied on a previous unpublished decision of mine from the Workers Compensation Commission, BIM v Judicial Commission of NSW matter no. 4528/20 (BIM) determined on 9 December 2020.
He relied on the provisions of s 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and passages from BIM to submit that an impairment caused by a consequential condition was not caught by the provisions of s 65A(4).
Mr Loukas submitted that the facts of BIM were identical with the current case, BIM being concerned with a primary psychological injury and consequential binaural hearing loss, and Mr Field’s case being concerned with a primary psychological injury and a consequential cardiac condition.
Mr Loukas referred to BIM and submitted that the finding there made at [59] was applicable in the present context. He submitted that the two conditions arose from the one injurious event, and that one was as a consequence of the other, thus avoiding the barrier set up by s 65A(4) of the 1987 Act.
The transcript shows that there followed a discussion as to the nature of a consequential condition, and whether it was compensable, as opposed to an injury as defined. Mr Loukas submitted that the development of this area of the law had been addressed from [31] in BIM. He submitted that part of the answer was to be found in s 322(2) of the 1998 Act applied, with the effect that the psychological and physical impairments were to be assessed together, as they arose from the same injurious event. Section 65A(4) was concerned with the prevention of the ‘amalgamation’ of two separate injuries, Mr Loukas argued, whereas in the present case there was no impediment to the amalgamation of two impairments that arose from the same injury.
Ms Balendra
Ms Balendra did not accept that the cardiac condition could be described as a consequential condition. She referred to the s 78 notice and said that there was no acceptance by the respondent that the cardiac condition was consequential. To the contrary, the s 78 notice alleged that s 65A(4) had been infringed as the applicant was claiming compensation for impairment caused by a psychological injury and a physical injury.
The onus was on the applicant to first establish that he had suffered a psychological injury and as a consequence had suffered his cardiac condition. Ms Balendra argued that whilst the section described two types of psychological injury - primary and secondary - there was no dichotomy with regard to the physical injury. The section did not differentiate between injury and consequential condition, but encompassed all injuries, whether a “primary” injury or a secondary “consequential injury.”
Ms Balendra emphasised her submission that there was no consequential injury established in any event, but even were that the case, such a species of entitlement would not escape the over-all reach of s 65A(4), I understood her to submit. Ms Balendra submitted that s 65A(4) did not mention consequential conditions and it was a matter of statutory interpretation. It could be inferred that it applied differently, as it contemplated that all physical injuries, no matter how received, were only compensable in circumstances set out in s 65A(4).
If that submission were not successful Ms Balendra submitted that actual phrasing of the subsection, particularly “arising out of the same incident” must necessarily refer to an incident. She referred to paragraph 22 of Mr Field’s statement that he had been suffering an underlying cardiac condition since he was 18 years old, and that it became more frequent as a result of the stress he encountered over a series of incident whilst at work.
Ms Balendra submitted that the aggravation of the physical condition started in 2019 and did not follow after Mr Field had received a psychological diagnosis. She referred to the expert cardiologists on both sides of the record who agreed that the psychological stress had aggravated or worsened the underlying SVT. It followed that the impairments, and indeed the injuries arose out of the same incidents. The incidents that caused the physical injury were the same as caused the psychological injury.
With regard to the BIM decision, Ms Balendra submitted that there was an injurious incident in the form of the psychological injury, but the physical condition (labyrinthitis hearing loss, did not occur until later), and was factually a consequential condition. She re-iterated that the respondent had not accepted that Mr Field’s cardiac condition was a consequential condition.
Mr Loukas in reply
Mr Loukas referred to the s 78 notice and submitted that there had been an acceptance of the cardiac condition as a consequential injury, or at the least that the respondent had not notified Mr Field that his allegation of a consequential condition was disputed.
Mr Loukas submitted that the test for a consequential injury was whether Mr Field’s tachycardia resulted from the psychological stress. In this case, the psychological stress aggravated Mr Field’s cardiac condition. On being asked why that did not constitute an injury pursuant to s 4(b)(ii) of the 1987 Act, Mr Loukas submitted that s 65A(4) extended to the situation where two separate injuries arose at the same time. That was distinguishable from the present situation where the primary psychological injury has given rise to another condition, which was not a separate injury as contemplated by s 65A(4). S 322 of the 1998 Act spoke in terms of separate impairments that could be aggregated. The word “injury” had a double meaning, being either the injurious event or the pathology that flowed from it.
Mr Loukas submitted that accordingly in aggregating impairments, the disentitling provisions of s 65A(4) were “by passed.” The “common law” established how a consequential condition arose, Mr Loukas submitted. I had considered the issue in BIM which was indistinguishable from the facts before me, Mr Loukas said. The fact that the cardiac condition might have been pre-existing was neither here nor there because the respondent’s own evidence said the condition had been aggravated by the post traumatic stress disorder.
DISCUSSION
Section 65A(4) of the 1987 Act provides:
“(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.”
41.Section 4 of the 1987 Act relevantly defines an injury as follows:
“‘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….”
In BIM the applicant suffered a psychiatric injury on a deemed date of 1 March 2015. She brought an action in the Workers Compensation Commission and received awards on 13 September 2016 for weekly compensation, and her WPI was assessed at 16%, which was undisputed.
In or about December 2017 the applicant developed viral labyrinthitis, which resulted in sudden hearing loss and issues with balance and tinnitus. The s 78 notice accepted that the applicant had initially suffered a primary psychological injury in 2015 and that a physical injury had also been sustained in the form of the hearing loss in December 2017. The respondent relied on s 65A(4) to deny lump sum compensation to Ms BIM.
Ms BIM disputed that she had suffered a physical injury, arguing that the had suffered a consequential condition, and thus the provisions of s 65A did not apply. The issues were thus similar to the present case, and depended on the categorisation of the injurious events suffered by Ms BIM.
The issues raised in this case have been most diverting. They concerned the legal status of a consequential condition, and I am grateful for the industry shown by counsel in that regard.
In Bouchmouni v Bakhos Matta t/a Western Red Services[12] Roche DP at [70] referred to “accepted law” that if an injury were aggravated by medical treatment or such treatment caused a secondary condition, the total condition would be attributable to the injury. The learned Deputy President expanded that principle to distinguish a back “injury”, in respect of which the respondent had earlier been given an award, by finding that the altered gait caused by a knee operation was causative of a back “condition” as a consequence of the knee injury. It was thus not an ”injury” and the respondent’s reliance on its award was rejected.
[12] [2013] NSWWCCPD 4.
This reasoning has been subsequently adopted so that compensation for a ”consequential condition” is commonplace.[13] Mr Loukas referred to its establishment as a “common law” development, but of course the Commission, as much as the Workers Compensation Commission was formerly, is a creature of statute, and its powers are to be found within the workers compensation legislation.
[13] See BIM from [31].
A question arose during argument, as was put in the context of the construction of s 65A, as to whether there is any legislative fiat for the payment of compensation for a worker who has suffered a consequential condition, as payment is only authorised under the relevant statutes where an injury as defined in s 4 has occurred. Ms Balendra emphasised her submission that there was no consequential injury established in any event, but even were that the case, such a species of entitlement would not escape the over-all reach of s 65A(4). She argued that the word “injury” in s 65A had a construction that included any compensable physical condition whether injury or consequential condition. There is some support for reading the provisions of s 65A as “special provisions,” albeit in a different context.[14]
[14] See Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 per Roche DP at [71].
However, it is not necessary to reach any determination as to these issues in view of the conclusion I have reached. Indeed this question is not one that can be considered any further at this level, in any event. There have been many instances where the concept has been applied at the Presidential level and the doctrine of stare decisis applies.
The distinguishing factor in BIM was that Ms BIM’s physical condition resulted from her psychological injury. It was not present at the time of her psychological injury but expert evidence was accepted that the development of her labyrinthitis some years later was a consequence of that injury. Accordingly employment could not be said to have been the main contributing factor or a substantial contributing factor to the labyrinthitis, nor did it arise out of or in the course of her employment. The employer accepted liability because it was a consequential condition.
The same cannot be said of Mr Field’s cardiac condition. It pre-existed Mr Field’s employment and the consensus by the cardiologists is that it was aggravated by Mr Field’s psychological condition. It accordingly arose out of and in the course of his employment, and employment was the main contributing factor to that aggravation. It was squarely defined by s 4(b)(ii) of the 1987 Act.
Mr Loukas submitted that the respondent had also admitted that the applicant’s cardiac condition was a consequential condition in the s 78 notice. He contended that the reference to a consequential condition whilst relating the claim made by the applicant was either an admission in itself, or that by failing to specifically deny the claim for the consequential condition, an admission could be implied.
I have reproduced the relevant parts of the notice above at [13] above. In the third paragraph the claim was reproduced that it related to the psychological injury and the consequential condition. However, that was a statement of fact. The relevant part of the notice I reproduced at [11] above, and it stated unambiguously that the entitlement to “lump sum compensation for the claimed injury and consequential condition” was disputed.
Accordingly the aggravation of Mr Field’s heart condition was an injury as defined in s 4(b)(ii) of the 1987 Act, and attracts the disentitling provisions of s 65A(4) of the 1987 Act.
For these reasons there is an award in favour of the respondent with regard to the claim for lump sum payment for Mr Field’s cardiac condition.
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