Pisaneschi and K&S Freighters Pty Ltd (Compensation)

This matter concerned an application by Mr Pisaneschi against K&S Freighters Pty Ltd for compensation for permanent impairment arising from accepted claims for hernia injuries and a psychiatric injury. The core dispute revolved around whether Mr Pisaneschi had undertaken all reasonable rehabilitative treatment and whether his impairment had reached a permanent state, thereby entitling him to compensation for non-economic loss. The case was heard by Dr Stewart Fenwick, Senior Member.

The legal issues before the Tribunal were threefold: first, whether Mr Pisaneschi suffered a permanent impairment in respect of his injury, considering the factors stipulated in the relevant Act; second, if so, whether this impairment met the required threshold for compensation; and third, the Applicant’s entitlement to compensation for non-economic loss. The Tribunal was required to assess the evidence regarding the applicant's physical and psychiatric conditions, his engagement with past and potential future treatments, and the opinions of medical professionals.

The Tribunal's reasoning focused on the applicant's assertion that he had undertaken all reasonable rehabilitative treatment and that no further treatment would yield improvement. Drawing on principles from *Filla v Comcare* and *Comcare v Filla*, the Tribunal acknowledged that determining reasonable rehabilitative treatment is a question of fact, considering risks and benefits. Crucially, the Tribunal noted that if an employee's refusal to undertake available treatment is likely to persist for a substantial period, this supports a finding of permanent impairment. Despite the respondent's contention that further treatment for groin pain was reasonable and available, and that the applicant's psychiatric condition was influenced by his physical state, the Tribunal found that the applicant's intention not to pursue further treatment, coupled with medical opinions suggesting limited benefit from further interventions, indicated that his impairment was permanent.

The Tribunal set aside the decision under review dated 9 December 2021 and substituted a new decision. It found that Mr Pisaneschi was entitled to compensation for permanent impairment in respect of his psychiatric injury under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988*. The degree of permanent impairment was determined to be 10%, and the degree of non-economic loss was assessed at 76%.