Judge v Workforce International (Office Services) Pty Ltd
[2023] NSWPIC 440
•1 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Judge v Workforce International (Office Services) Pty Ltd [2023] NSWPIC 440 |
| APPLICANT: | Toby Judge |
| RESPONDENT: | Workforce International (Office Services) Pty Limited |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 1 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for a primary psychological injury on 12 November 2018 and a secondary or consequential physical injury to the applicant’s forearms; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant is able to aggregate both his physical and psychological impairments, despite section 65A(4), in order for his entitlement pursuant to section 66 in relation to his 12 November 2018 injury to be determined; BIM v Judicial Commission of NSW, Tagicaki v Everwilling Cranes Pty Limited, Bouchmouni v Bakhos Matta t/as Western Red Services, Department of Juvenile Justice v Edmed, Warwar v Speedy Courier (Australia) Pty Limited, Certain Lloyd’s Underwriters subscribing to contract no IH00AAQS v Cross, Project Blue Sky Inc v Australian Broadcasting Authority, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Kumar v Royal Comfort Bedding Pty Ltd, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Ozcan v Macarthur Disability Services Limited, NSW Police Service v Snape, Abu-Ali v Martin-Brower Australia Pty Limited, Bell v The Mining Pty Limited considered; Held – the applicant is unable to aggregate the impairment found in the Medical Assessment Certificate (MAC) of Dr Shen dated 28 April 2023 with the impairment found in the MAC of Dr Burns dated 28 April 2023, due to the operation of section 65A(4) of the Act, in order for his entitlement pursuant to section 66 of the Act in relation to his 12 November 2018 injury to be determined; award in favour of the applicant pursuant to section 66 in accordance with only the MAC of Dr Shen dated 28 April 2023. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant is unable to aggregate the impairment found in the Medical Assessment Certificate of Dr Shen dated 28 April 2023 with the impairment found in the Medical Assessment Certificate of Dr Burns dated 28 April 2023, due to the operation of s 65A(4) of the Workers Compensation Act 1987 (the 1987 Act), in order for his entitlement pursuant to s 66 of the 1987 Act in relation to his 12 November 2018 injury to be determined. The Commission orders: 2. There will be an award in favour of the applicant pursuant to s 66 of the 1987 Act in the amount of $58,000 with respect to 22% whole person impairment in relation to his 12 November 2018 injury, in accordance with the Medical Assessment Certificate of Dr Shen dated 28 April 2023. |
STATEMENT OF REASONS
BACKGROUND
Toby Judge (the applicant) is 42-year-old and commenced employment as an area supervisor on 1 July 2018 with Workforce International (Office Services) Pty Limited (the respondent).
The applicant alleges that he sustained a psychological injury (agreed between the parties to have a deemed date of 12 November 2018) due to events which occurred during the course of his employment with the respondent. He also alleges that consequential to that injury, he lacerated his forearms on 12 November 2018. He has been incapacitated for employment since that date, which was the last date when he worked for the respondent.
The respondent accepted liability for the applicant’s psychological and physical conditions, and made weekly compensation payments to him as well as paying his expenses in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act), until 12 October 2022.
The applicant made a formal claim (on 16 March 2022) upon the respondent for compensation pursuant to s 66 of the 1987 Act in relation to both his psychological whole person impairment and his physical whole person impairment, which he alleged could be aggregated.
On 10 August 2022, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim pursuant to s 66 of the 1987 Act. Then, on 22 August 2022, the respondent issued a further notice denying liability under s 78 of the 1998 Act in relation to the applicant’s ongoing entitlement to weekly compensation payments.
By an Application to Resolve a Dispute (ARD) filed in the Commission (Commission), the applicant claims weekly compensation payments from 13 October 2022 as well as compensation pursuant to s 66 of the 1987 Act in relation to both his psychological and physical whole person impairments, as aggregated.
ISSUES FOR DETERMINATION
The parties agree that the issue in dispute is as follows:
(a) is the applicant able to aggregate the impairments found by Medical Assessor Shen (22%) and Medical Assessor Burns (14%), despite s 65A(4) of the 1987 Act, in order for his entitlement pursuant to s 66 of the 1987 Act in relation to his 12 November 2018 injury to be determined.
PROCEDURE BEFORE THE 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 a full agreed resolution of the dispute.
The dispute was initially listed before the Commission for a preliminary conference on 8 December 2022. It was then agreed between all the parties that in order to resolve the dispute in its entirety, the applicant should be first referred to Medical Assessment in relation to the extent of both his psychological whole person impairment and his physical whole person impairment.
The necessary referral was made pursuant to s 321A of the 1998 Act, and the applicant attended assessments with Medical Assessor Shen on 24 April 2023 and with Medical Assessor Burns on 11 January 2023.
Medical Assessor Shen issued a Medical Assessment Certificate (Shen Certificate) dated 28 April 2023 assessing the applicant’s psychological whole person impairment at 22%, and Medical Assessor Burns issued a Medical Assessment Certificate (Burns Certificate) dated 28 April 2023 assessing the applicant’s physical whole person impairment at 14%. Neither party sought to appeal either of these assessments.
The dispute was then listed for conciliation/arbitration before the Commission on 26 June 2023. On that occasion, Mr Paul Stockley of counsel appeared for the applicant, instructed by Ms Wightley. The applicant was also present. Mr Dewashish Adhikary of counsel appeared for the respondent, instructed by Mr McCourt.
During conciliation, a resolution was reached between the parties regarding the applicant’s entitlement to weekly compensation payments from 13 October 2022. Consent orders were agreed in this regard and recorded in a Certificate of Determination dated 27 June 2023.
The dispute in relation to the extent of the applicant’s entitlement to compensation pursuant to s 66 of the 1987 Act however could not be resolved. Therefore, the specific issue requiring determination by the Commission (see paragraph 7 above) was agreed upon between the parties. It was also agreed that if I determined that issue in favour of the applicant, he would be entitled to an amount of $98,150, representing an aggregated 33% whole person impairment pursuant to s 66. However, if I determined the issue in favour of the respondent, it was agreed that the applicant would be entitled to an amount of $58,000, representing 22% whole person impairment (being the greater of the assessments of the Medical Assessors) pursuant to s 66.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) the respondent’s Reply (Reply) and attached documents;
(c) the Shen Certificate, and
(d) the Burns Certificate.
Oral evidence
There was no oral evidence given by the applicant or any other witness at the arbitration hearing.
Consideration of the evidence
Considering the discrete nature of the issue requiring determination by the Commission, a detailed analysis of the evidence is not required. I have considered all the evidence, and will refer to aspects of it in more detail if directed to those aspects during the parties’ submissions.
The findings as to the level of the applicant’s whole person impairment in the Shen Certificate and in the Burns Certificate have not been appealed, and as a result, the findings are conclusively presumed to be correct pursuant to s 326 of the 1998 Act. The findings bind my decision-making and I do not need to evaluate other medical evidence in this regard.
Applicant’s submissions
Prior to the conciliation/arbitration, the applicant had already lodged brief written submissions dated 19 June 2023, and he made further oral submissions at the arbitration hearing on 26 June 2023. Both sets of submissions form part of the Commission’s record and I do not therefore need to repeat them in detail.
The applicant notes that there is no dispute that he suffers from 22% whole person impairment as a result of a primary psychological injury and 14% whole person impairment as a result of a secondary or consequential physical condition, and he submits that prima facie he is entitled to be compensated for 33% whole person impairment pursuant to s 66 of the 1987 Act in accordance with s 66(1) of the 1987 Act, as he has suffered a whole person impairment of greater than 10% arising out of his 12 November 2018 injury, and due to the definition of ‘injury’ including secondary or consequential conditions which arise from a specific injury. There needs to be a disentitling provision for the Commission to decide otherwise.
The applicant concedes that s 65A of the 1987 Act is such a disentitling provision, but argues that it does not apply where there is a primary psychological injury and a consequential or secondary physical condition. The applicant points out that s 65A defines ‘secondary psychological injury’ but not ‘secondary physical injury’, and he also points out that ‘secondary physical injury’ is not specifically mentioned in s 65A(4).
The applicant concedes that he will fail in his argument if the Commission finds that ‘physical injury’ (as referred to in s 65A(4) of the 1987 Act) encompasses the notion of a consequential condition. In terms of statutory interpretation, the applicant urges the Commission to “apply the clear language of the section”, to find that his consequential or secondary physical condition is not a ‘physical injury’ for the purpose of s 65A(4). A ‘physical injury’ would need to meet the requirements in s 4 of the 1987 Act which the applicant’s conceded secondary or consequential physical condition does not.
The applicant refers to and seeks to distinguish the example of a worker who sustained both physical and psychological injuries in an armed hold-up during the course of employment. The assessment of that worker’s whole person impairment would be subject to s 65A(4) of the 1987 Act as both injuries arose out of the same incident. However, the applicant argues that his circumstances are different, and in his written submissions summarises:
“The applicant’s case is that his physical disability and impairment does was not a physical injury [emphasis in original] arising out of the same incident which caused his accepted psychological injury and is thus not caught by the limitation/prohibition in s 65A(4)”.
The applicant then refers the Commission to two previous (but inconsistent) decisions of it or its predecessor (the Workers Compensation Commission), which involved similar factual circumstances to his. He urges the Commission to follow the decision of Arbitrator Wynyard (as he then was) in BIM v Judicial Commission of NSW (unpublished – matter 4528/20 – determined 9 December 2020) (BIM), rather than the decision of Principal Member Capel (as he then was) in Tagicaki v Everwilling Cranes Pty Limited [2022] NSWPIC 203 (Tagicaki).
The applicant also relies upon the decision in Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 in support of his argument as to the distinction between an injury and a resulting condition.
Respondent’s submissions
Prior to the conciliation/arbitration, the respondent had also already lodged brief written submissions dated 21 June 2023, and it made further oral submissions at the arbitration hearing on 26 June 2023. Both sets of submissions form part of the Commission’s record and I do not therefore need to repeat them in detail.
The respondent correctly identifies the issue for the Commission’s determination to be whether the term ‘physical injury’ in s 65A(4) of the 1987 Act includes a consequential condition.
The respondent notes that the sole reason for the applicant’s position that the term does not include a consequential condition, is to allow the applicant to aggregate impairments. In those circumstances, the respondent submits that the wording in s 322 of the 1998 Act is highly relevant as that section deals with how impairments are assessed together. The meaning given to ‘injury’ in that section is clear from Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed), in which it was held that:
(a) the definition of ‘injury’ in s 4 of the 1987 Act does not assist when the question of aggregation arises, and
(b) the term ‘injury’ for the purpose of s 322 of the 1998 Act means the pathology that results from an injurious event.
In accordance with Warwar v Speedy Courier (Australia) Pty Limited [2010] NSWWCCPD 92, the pathology that results from an injurious event includes both primary and consequential injuries.
The respondent submits that to define ‘physical injury’ in s 65A(4) of the 1987 Act in the manner contended by the applicant would not be “harmonious” as it would be defining ‘injury’ in a different manner to s 322 of the 1998 Act in circumstances where both sections are dealing with the “same issue of aggregation”. In relation to the need to interpret legislation in a way that is consistent and harmonious, the respondent refers to Certain Lloyd’s Underwriters subscribing to contract no IH00AAQS v Cross [2012] HCA 56, and quotes from that authority (at [24] - where it references Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (Project Blue Sky)) in its written submissions as follows:
“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’. That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is construed”.
The respondent urges the Commission to adopt the reasoning of Principal Member Capel (as he then was) in Tagicaki, rather than the reasoning of Arbitrator Wynyard (as he then was) in BIM.
Applicant’s submissions in reply
These submissions were recorded and therefore form part of the Commission’s record. I do not intend to repeat them in detail.
The applicant sought to distinguish the decisions in Edmed and Warwar on the basis that they dealt with a different issue than the issue before the Commission ventilated by the applicant, being whether impairments can be aggregated where there are successive injuries.
The applicant was then questioned by the Commission in relation to whether his physical injury was in fact a separate injury (in accordance with s 4 of the 1987 Act) to his psychological injury, making the aggregation of impairments from each separate injury not possible. The applicant confirmed that “that was not a way I considered the case” and maintained his allegation that his physical condition was secondary or consequential to a primary psychological injury.
The respondent then advised the Commission that it wanted to make it clear that it had conceded that the applicant had sustained a consequential physical condition as a result of his psychological injury.
FINDINGS AND REASONS
Is the applicant able to aggregate the impairments found by Medical Assessor Shen (22%) and Medical Assessor Burns (14%), despite s 65A(4) of the 1987 Act, in order for his entitlement pursuant to s 66 of the 1987 Act in relation to his 12 November 2018 injury to be determined
Section 4 of the 1987 Act provides 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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant’s position (see paragraph 34 above) is that he has not suffered a physical injury in accordance with s 4 of the 1987 Act. It was not argued that the lacerations to his forearms were anything other than a secondary or consequential condition which resulted from his 12 November 2018 primary psychological injury. The respondent accepts that position (see paragraph 35 above).
As a result, I do not intend to determine whether the applicant suffered an injury to his forearms on 12 November 2018 that would meet the definition of ‘injury’ in s 4 of the 1987 Act.
I will accept in accordance with the respondent’s concession, that the lacerations to his forearms resulted from his 12 November 2018 primary psychological injury. The condition in his forearms is therefore compensable as a condition (often referred to as a consequential condition) that has resulted from an injury – see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon), Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD, and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23. As Roche DP observed in Moon:
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
I accept the applicant’s submission (at paragraph 20 above) that unless there is a disentitling provision, he would as a result be entitled to lump sum compensation pursuant to s 66 of the 1987 Act in relation to his whole person impairment arising from both his primary psychological injury and the resulting consequential condition to his forearms (as an aggregated assessment). In this regard, both the Shen Certificate and the Burns Certificate assess impairments of greater than 10%, and s 66(1) provides as follows:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.”
Section 65A(4) of the 1987 Act is the disentitling provision relied upon by the respondent in this regard. The whole section reads as follows:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note : If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply--
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note : If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Section 65A refers to both s 65 of the 1987 Act (which deals with how the degree of permanent impairment is to be determined) and s 322 of the 1998 Act (which deals with how the degree of permanent impairment is to be assessed).
Section 65 of the 1987 Act reads as follows:
“(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note : The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”
Section 322 of the 1998 Act reads as follows:
“(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note : Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
In my opinion, ss 65 and 65A of the 1987 Act, together with s 322 of the 1998 Act need to be read together when interpreting them. They all deal with how lump sum compensation claims pursuant to s 66 of the 1987 Act are to be determined and assessed. I agree with the respondent (see paragraph 30 above) that the sections need to be interpreted in a consistent and harmonious way.
In dealing with the term ‘injury’ within s 65 of the 1987 Act and s 322 of the 1998 Act, Roche DP in Edmed did not use the strict definition of ‘injury’ found in s 4 of the 1987 Act. Instead, he commented that (at [26]):
“This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ [emphasis in original]. This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and [emphasis in original] separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial”.
The applicant argues that for s 65A of the 1987 Act to apply, he would have needed to have received both a psychological injury and a physical injury that both meet the definition of ‘injury’ within s 4 of the 1987 Act. As the condition involving the lacerations to his forearms did not meet that definition, he has not received a ‘physical injury’ but has only received a ‘primary psychological injury’ (which has led to a secondary physical condition to his forearms).
This argument however fails to take into account the interpretation given to the term ‘injury’ in Edmed, as including the pathology that has resulted from an injurious event and not being limited by the definition of ‘injury’ within s 4 of the 1987 Act. Using that interpretation, the pathology in the applicant’s forearms has resulted from the applicant’s injurious event (being the psychological injury which he sustained arising out of or in the course of his employment with the respondent). That pathology is an ‘injury’ within s 65 of the 1987 Act and s 322 of the 1998 Act according to the reasoning in Edmed.
If the pathology in the applicant’s forearms is an ‘injury’ within those sections, it is inconsistent in my view for it not to be an ‘injury’ within s 65A(4) of the 1987 Act. The three sections rely on each other, and references to the other sections are noted in each section. In coming to this conclusion, I have considered the necessity (per Project Blue Sky) for me to construe the three sections so that they are consistent with the language and purpose of all the provisions in both the 1987 Act and the 1998 Act, but particularly those provisions dealing with the determination and assessment of lump sum compensation claims for permanent impairment.
The applicant’s argument also fails to appreciate a distinct difference between the causative trail required for an ‘injury’ under s 4 of the 1987 Act (“arising out of or in the course of employment”) and the causative trail referred to in s 65A(4) of the 1987 Act (“arising out of the same incident”). The term ‘arising out of the same incident’ in my view encompasses conditions or pathologies (such as the lacerations to the applicant’s forearms) that are consequent upon an injurious event, but not necessarily arising out of or in the course of employment. It is the injurious event rather than employment that is relevant.
This is the approach adopted by Macfarlan JA in Ozcan v Macarthur Disability Services Limited [2021] NSWCA 56 (Ozcan), when he stated (at [16]):
“The Deputy President reached a different conclusion because she found that the right shoulder injury ‘did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology)’ (see [145] and [150] quoted in [11]above). This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident [my emphasis], that is, that of 14 November 2011”.
Importantly, the term ‘arising out of the same incident’ is also used in s 65 of the 1987 Act and s 322 of the 1998 Act, reinforcing the degree to which the three sections need to be analysed and interpreted together. As was also noted in Ozcan (at [25]):
“Section 65(2) of the 1987 Act is to the same effect as s 322(3) of the 1998 Act – under the former, injuries arising out of the same incident are to be treated as one injury and under the latter, impairments resulting from more than one injury arising out of the same incident are to be assessed together”.
The applicant’s argument further fails to appreciate that a secondary or consequential psychological condition is referred to in s 65A of the 1987 Act as a ‘secondary psychological injury’ [my emphasis], and defined in s 65(5) as “a psychological injury [my emphasis] to the extent that it arises as a consequence of, or secondary to, a physical injury”. Although there is no definition of a secondary ‘physical injury’ in the section, in my view, the definition of ‘secondary psychological injury’ is an important indication that the section is contemplating injuries that do not necessarily conform with s 4 of the 1987 Act, as generally a secondary psychological injury will not so conform.
I therefore find that the term ‘physical injury’ in s 65A(4) of the 1987 Act would include the pathology in the applicant’s forearms. In those circumstances, as he concedes (see paragraph 22 above), his argument that he can aggregate his physical whole person impairment with his psychological whole person impairment fails.
Such a result is consistent with the decision of Keating P in NSW Police Service v Snape [2008] NSWWCCPD 89, in which it was found that a worker who had sustained a primary psychological injury (post-traumatic stress disorder) as well as a consequential physical injury (the onset of diabetes) was only entitled to be compensated for the effects of the primary psychological injury in the determination of the compensation to be awarded to him pursuant to s 67 (as it then was) of the 1987 Act. In that case, the worker’s psychological whole person impairment as well as his physical whole person impairment had been assessed and he had elected to receive compensation pursuant to s 66 of the 1987 Act in relation to solely the psychological whole person impairment. The President stated (at [43]):
“On the contrary, the intention of the legislation is quite the opposite. Section 65A, as the heading suggests, is a special provision dealing with compensation for pain and suffering, both psychological and psychiatric injury. Section 65A(4) restricts compensation for those suffering primary psychological injury and a physical injury arising out of the same incident, as is the position with Mr Snape, from receiving compensation for both. The Worker is only entitled to receive compensation under the division in respect of impairment resulting from one or the other of those injuries. In this instance, relying on section 65A(4)(b), Mr Snape elected to receive compensation for impairment for psychological injury, it being the impairment resulting in the greatest amount of compensation payable to him. The words in section 65A(4) ‘under this division’ are, in my opinion, deliberate and include compensation under section 67. I am reinforced in that view by the definition of ‘pain and suffering’ in section 67, which is expressly limited to actual pain or distress and anxiety suffered, or likely to be suffered, by the injured worker whether resulting from the permanent impairment concerned [original emphasis] or from any necessary treatment. In other words, in my view, the section, when read in conjunction with section 65A(4)(b), is intended to limit compensation for pain and suffering to losses arising from the permanent impairment for which the worker has elected to receive benefits”.
In my opinion, such a result is also entirely consistent with cl 1.19 of the fourth edition (issued 1 March 2021) of the NSW workers compensation guidelines for the evaluation of permanent impairment (published by the State Insurance Regulatory Authority of New South Wales), which states:
“The exception to this rule is in the case of psychiatric or psychological injuries. Where applicable, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from any [my emphasis] physical injuries arising out of the same incident [my emphasis]. The results of the two assessments cannot be combined”.
In Abu-Ali v Martin-Brower Australia Pty Limited [2017] NSWWCCPD 25, Snell DP considered the importance of the guidelines in the structure of both the 1987 Act and the 1998 Act. In that case he was dealing with an argument requesting an interpretation of s 65A of the 1987 Act to allow an assessment to be made of a worker’s whole person impairment in relation to a second psychological injury. He stated (at [74]):
“Additionally, the 1987 and 1998 Acts establish the structure of a scheme for the assessment of permanent impairment, which is incomplete in the absence of the relevant Workers Compensation Guidelines. It is legitimate to have regard to the Guidelines, ‘in order to understand the scheme’ (see the passage from Tannous quoted at [66] above). The scheme, viewed in this context, is one that makes no provision for the assessment of permanent impairment, in respect of a secondary psychological condition (see the parts of the Guidelines quoted at [57]-[58] above). If the order for referral sought by the appellant were made, there would be no basis in the Guidelines for assessment of permanent impairment, in respect of the secondary psychological condition, to occur. Yet the scheme is one in which ‘the assessment of the degree of permanent impairment of an injured worker ... is to be made in accordance with the Workers Compensation Guidelines’: s 322(1) of the 1998 Act. The structure of the scheme is inconsistent with the proposition that permanent impairment can be assessed in respect of secondary psychological injury”.
Just as the guidelines provide no basis for an assessment to be made of a secondary psychological injury, they also provide no basis for the combination of assessments of psychological injuries and assessments of physical injuries arising out of the same incident.
Accordingly, I find that the applicant’s lacerations to his forearms (while consequential or secondary to his primary psychological injury) is a ‘physical injury’ as described in s 65(4) of the 1987 Act. The section prohibits the aggregation of psychological and physical impairments where a worker suffers a primary psychological injury and a ‘physical injury’ arising out of the same incident or injurious event. The applicant is therefore not entitled to aggregate the impairment found in the Shen Certificate with the impairment found in the Burns Certificate.
In accordance with s 65A(4)(b) of the 1987 Act, the applicant is to receive compensation pursuant to s 66 of the 1987 Act for whichever of the assessed psychological or physical impairments results in the greater amount of compensation being paid to him. Both parties have agreed (see paragraph 14 above) that as a result of my findings, the applicant would be entitled to an amount of $58,000 in this regard, in relation to 22% psychological whole person impairment (in accordance with the Shen Certificate).
I finally note that during my consideration, I have had regard to the decisions of the Commission in BIM and Tagicaki as well as a more recent decision of Member Homan in Bell v The Mining Pty Limited [2023] NSWPIC 295 (Bell). These three decisions all deal with the same issue for determination by me. Although none of the decisions are binding authority for me to follow, I express broad agreement with the reasoning in the decisions of Tagicaki and Bell. I do not follow the decision in BIM as it does not accord with the reasoning outlined by me above.
SUMMARY
I therefore find that the applicant is unable to aggregate the impairment found in the Shen Certificate with the impairment found in the Burns Certificate due to the operation of s 65A(4) of the 1987 Act, in order for his entitlement pursuant to s 66 of the 1987 Act in relation to his 12 November 2018 injury to be determined.
There will be an award in favour of the applicant pursuant to s 66 of the 1987 Act in the amount of $58,000 with respect to 22% whole person impairment in relation to his 12 November 2018 injury, in accordance with the Shen Certificate.
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14
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