Tagicaki v Everwilling Cranes Pty Limited

[2022] NSWPIC 203

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Tagicaki v Everwilling Cranes Pty Limited [2022] NSWPIC 203
APPLICANT:	Taniela Tagicaki
RESPONDENT:	Everwilling Cranes Pty Limited
principal member:	Glenn Capel
DATE OF DECISION:	9 May 2022
CATCHWORDS:	WORKERS COMPENSATION - The worker, who sustained a primary psychological injury and a secondary physical condition; sought aggregation of whole person impairment assessments on grounds that the physical condition resulted from the psychological injury and not the injurious incident; so section 65A (4) of the Workers Compensation Act 1987 did not apply; Department of Juvenile Justice v Edmed and Ozcan v Macarthur Disability Services Ltd discussed; Held- the term “condition” is not contained in the legislation; only the term “injury”; both assessable impairments resulted from the one injurious event; the worker not entitled to aggregate the assessments of whole person impairment; worker awarded lump sum compensation in respect of impairment due to alcoholic cardiomyopathy.
determinations made:	The applicant is not entitled to aggregate the assessment of whole person impairment due to a psychological injury sustained on 13 September 2018 with the assessment of whole person impairment of the cardiovascular system that resulted from the psychological injury sustained on 13 September 2018.
orders made:	The respondent to pay the applicant $185,190 in respect of 50% whole person impairment of the cardiovascular system due to injury sustained on 13 September 2018 pursuant to section 66 of the of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1.Taniela Tagicaki (the applicant) is 54 years old and commenced employment with Everwilling Cranes Pty Ltd (the respondent) as a dogman/ crane chaser on 14 January 2004. He last worked for the respondent on 18 December 2018.

2.There is no dispute that the applicant sustained a psychological injury arising out of or in the course of his employment on 13 September 2018 when he was pinned against a crane after a concrete panel snapped. Liability was accepted by Employers Mutual Ltd (the insurer) and weekly compensation and medical expenses have been paid. Precise details are unknown.

3.On 23 June 2020, the applicant’s solicitor served a notice of claim in respect for lump sum compensation on the respondent and the insurer, based on reports of Dr Oldtree Clark dated 15 May 2020 and Associate Professor Haber dated 5 June 2020

4.On 13 October 2020, the insurer responded to the applicant’s claim for the psychological injury and offered to resolve the claim for 24% whole person impairment. There was no offer in respect of the cardiovascular condition because the respondent’s independent medical examiner, Dr Herman, was not satisfied that the applicant‘s condition had reached maximum medical improvement.

5.By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 10 May 2021, the applicant claims medical expenses in the sum of $5,104.80 pursuant to s 60 of the of the Workers Compensation Act 1987 (the 1987 Act), and lump sum compensation pursuant to s 66 of the 1987 Act in respect of a primary psychological injury and a consequential cardiovascular condition sustained on
13 September 2018.

PROCEDURE BEFORE THE COMMISSION

6.The applicant’s claim was referred to two Medical Assessors by a member of the Dispute Services unit of the Commission on 22 June 2021. The terms of the referral were as follows:

“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)

othe degree of permanent impairment of the worker as a result of an injury (s319(c))

owhether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

owhether impairment is permanent (s319(f))

owhether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

Date of Injury: 13/09/2018

Body part/s referred:     Psychological/ Psychiatric disorder

Cardiovascular system

Method of assessment:  Whole Person Impairment

2. BRIEF

The brief provided to the Medical Assessor includes:

1.the Application and attached documents

2.the Reply and attached documents

3. ARRANGEMENTS

The parties request the Registrar to choose the Medical Assessor (s321(1)):

DR BAKER TO ASSESS PSYCHOLOGICAL INJURY VIA VIDEO PLATFORM ZOOM

DR ACKROYD TO ASSESS CARDIOVASCULAR SYSTEM

THESE TWO ASSESSMENTS WILL NOT BE CONSOLIDATED”

7.Dr Baker, psychiatrist, provided a Medical Assessment Certificate (MAC) on 22 July 2021. He diagnosed a  Post-Traumatic Stress Disorder and a Persistent Depressive Disorder, together with a severe Alcohol Use Disorder as a result of the injury sustained on
13 September 2018. He assessed 24% whole person impairment.

8.Dr Ackroyd, cardiologist, provided an Amended MAC on 30 March 2022. He diagnosed alcoholic cardiomyopathy resulting in chronic heart failure. He assessed 50% whole person impairment of the cardiovascular system due to injury sustained on 13 September 2018.

9.After the MACs were issued to the parties, the applicant’s solicitor requested that the issuing of the Certificate of Determination (COD) be deferred as there was still an issue as to whether the assessments could be combined. The parties were unable to agree, and rather than schedule a telephone conference or arbitration hearing, I directed that written submissions be filed and served.

10.Written submissions were filed by the applicant on 14 April 2022 and 22 April 2022, and by the respondent on 26 April 2022. The applicant did not file any submissions in reply as directed by 6 May 2022.

11.I was informed by the applicant’s solicitor on 3 May 2022 that the claim for medical expenses was withdrawn.

ISSUES FOR DETERMINATION

12.  The parties agree that the following issues remain in dispute:

i)     Whether the assessments of whole person impairment resulting from the incident on 13 September 2018 can be aggregated.

Documentary evidence

13.The following documents were in evidence before the Commission and taken into account in making this determination:

(a)  The Application with attached documents, and

(b)  Reply with attached documents.

Oral evidence

14.Neither party sought leave to adduce oral evidence.

REVIEW OF EVIDENCE

15.Given the discrete nature of the dispute, I do not propose to summarise the evidence.

LEGISLATION

16.Section 4 of the 1987 Act defines injury as follows:

“In this Act-

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”.

17.Sections 65 and 65A of the 1987 Act provide guidance regarding the assessment of impairment arising from injuries. They provide:

“65   Determination of degree of permanent impairment

(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…

65A   Special provisions for psychological and psychiatric injury

(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.”

18.Section 322 of the 1998 Act deals with assessment of impairments that arise from the same injury. It provides:

“322   Assessment of impairment

(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….”

SIRA NSW workers compensation guidelines for the evaluation of permanent impairment

19.The SIRA NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) set out how multiple impairments are assessed. The relevant clauses are:

“The Multiple impairments

1.17 Impairments arising from the same injury are to be assessed together.
               Impairments resulting from more than one injury arising out of the same incident
               are to be assessed together to calculate the degree of permanent impairment of
               the claimant….

1.19 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 physical injuries arising out of the same incident. The results of the two    
               assessments cannot be combined.”

APPLICANT’S SUBMISSIONS

20.The applicant’s counsel, Mr Perry, submits that there is no dispute that the applicant received a primary psychological injury. He submits that s 65A(4) is predicated upon a worker having sustained two injuries, namely a primary psychological injury and a physical injury arising out of the same incident. The applicant's alcoholic cardiomyopathy is a consequence of his psychiatric injury and represents a secondary cardiac condition, not an injury.

21.Mr Perry submits that the authorities confirm that there is a difference between an injury and a condition that results from an injury[1]. The applicant’s claim does not involve a psychological injury and a physical injury sustained in the same incident. Section 65A(4) of the 1987 Act would defeat such a claim. The applicant only sustained one relevant injury, not two, and his cardiopathy is a consequential condition, not an injury.

[1] Bouchmani v Bakhos Matta t/as Western Red Services [2013] NSWWCCCPD 4 (Bouchmani); Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; North Coast Area Health Service v Felstead [2011] NSWWCCPD 51; Australian Traineeship System v Turner [2012] NSWWCCPD 4; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar).

22.Mr Perry submits that the applicant disagrees with respondent's interpretation of s 65A(4) of the 1987 Act. The section refers to a primary psychological injury and a physical injury arising out of the same incident. It is clear from the authorities that it is not permissible to substitute the word “conditions” for the word “injuries”.

23.Mr Perry submits that the decisions of Qantas Airways Limited v Watson[2], Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[3]and Nunan v Cockatoo Island Docks & Engineering Co Ltd [4], which were referred to on an email to the Commission and not in the respondent’s submissions, are authorities for the proposition that a worker needs to establish a causal connection between his or her employment and the injury upon which he or she relies, but not consequential conditions.

[2] [2010] NSWWCCPD (Watson), [76].

[3] ) [2009] NSWCA 324 (Badawi)

[4] (1941) 41 SR (NSW)

24.Mr Perry submits that the applicant relies on the causal connection between the employment incident on 13 September 2018 and his psychiatric injury, and this injury forms the basis for his claim. The consequential condition, alcoholic myopathy, is linked to the employment incident by way of the chain of causation referred to in Kooragang Cement Pty Ltd v Bates[5].

[5] (1994) 35 NSWLR 452 (Kooragang)

25.Mr Perry submits that, a consequential condition must have a causal connection to the event which has caused injury, although, as was pointed out in Murphy v Allity Management Pty Limited[6], a worker needs only to establish that the work injury materially contributed to the compensable condition. Given that chain of causation, it may be reasonable for the respondent to contend, as it has, that the condition arises from the incident, but a secondary or consequential condition retains that character, and is not an injury, so s 65A(4) of the 1987 Act is not enlivened.

[6] [2015] NSWWCCPD 49 (Murphy), [58]

26.Mr Perry submits that Cannon v The Healthy Snack People Pty Ltd[7] can be distinguished from this matter, because there the issue related to a psychological injury arising following a physical injury, even though the injury might not have taken place but for the physical injury. In this matter, the applicant has not set out establish injury to his cardiac system, but a consequential condition resulting from his psychological injury that arose out of and in the course of his employment, and to which his employment was a substantial contributing factor.

[7] [2009] NSWWCCPD 32 (Cannon)

27.Mr Perry submits that s 65(1) of the 1987 Act provides that for the purpose of Division 4, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and by Part 7 of Chapter 7 of the 1998 Act. Section 65A of the 1987 Act falls within Division 4. It provides that if a worker suffers a traumatic event at work in which the worker is physically injured and suffers a primary psychological injury in the same event, the worker is prohibited by sec 65A(4) of the 1987 Act from recovering compensation for both injuries. The applicant does not claim that he suffered two injuries.

28.Mr Perry submits that s 322 of the 1998 Act is relevant because the applicant has suffered two impairments from the same injury or pathology, and these can be combined. This is consistent with the reasoning in Department of Juvenile Justice v Edmed[8]. The pathology is a Post-Traumatic Stress Disorder, and the cardiac myopathy results from that pathology.

[8] [2008) NSWWCCPD 6, (Edmed)

29.Mr Perry submits that the applicant suffered a primary psychiatric injury and the impairment caused by the cardiac myopathy results from that injury. It is not a physical injury arising out of the same incident, so cl 1.19 of Part 2 of the Guidelines does not apply.

RESPONDENT’S SUBMISSIONS

30.The respondent’s solicitor, Mr Michael, submits that s 65A(5) of the 1987 Act makes it clear that a “secondary psychological injury” means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. Any such secondary psychological injury is in fact a secondary condition however, by definition, it is given the status of an “injury”. It is in this context that Section 65A(4) of the 1987 Act provides for separate assessments in respect of physical and primary psychological injuries arising out of the same incident and for a worker to only be entitled to recover compensation for impairment resulting from whichever injury results in the greater amount of compensation.

31.Mr Michael submits that s 322(3) of the 1998 Act repeats the phrase “out of the same incident” and makes it clear that impairments are to be assessed together, subject to the note. He submits that an injury can set in train a series of events and a common sense evaluation of the causal chain is necessary to determine whether a consequential condition arises from a work injury[9].

[9] Grant v. Dateline Imports Pty Ltd [2021] NSWPIC 83, [8] to [10].

32.Mr Michael submits that the applicant’s physical and psychological conditions arose out of the same incident within the meaning of s 65A(4) of the 1987 Act. The date of injury for both is 13 September 2018.

33.Mr Michael submits that s 65A of the 1987 Act deals with payment of permanent impairment compensation and that the authorities establish a system of payment or aggregation in respect of more than one injury, meaning more than one pathology “arising out of the same incident”[10]. According to Edmed, impairments resulting from the injuries arising from the same incident are to be assessed together[11].

[10] Tokitch v. Tokitch Holdings Pty Limited [2015] NSWWCCPD 72, [50].

[11] Edmed, [26]

34.  Mr Michael submits that when approaching the question of statutory construction, it is necessary to construe the relevant provision so that it is consistent with the language and purpose of the provisions of the Act[12].

[12] Abu-Ali v. Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, (Abu-Ali).

35.Mr Michael submits that the primary psychiatric injury and secondary cardiac injury/condition arise out of the same incident. There are physical and psychological pathologies that were undoubtedly causally related to one incident. Section 65A(4)(b) of the 1987 Act provides that a worker is only entitled to permanent impairment compensation for the injury (pathology) that results in the greater amount of compensation being payable to the worker.

REASONS

Can the assessments of whole person impairment resulting from the incident on
13 September 2018 be aggregated?

36.The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain discussed in Kooragang.

37.In order to be satisfied that an injury has occurred, there must be evidence of a sudden

or identifiable pathological change[13]. In Lyons v Master Builders Association of NSW Pty Ltd [14], Neilson CCJ held that the word “injury” referred to both the injurious event and the pathology arising from it[15].

[13] Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496.

[14] (2003) 25 NSWCCR 422, (Lyons).

[15] Lyons, [429].

38.In Edmed, Deputy President Roche discussed the definition of the term “injury” in s 4 of the 1987 Act and commented as follows:

“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 added). 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 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.”[16]

[16] Edmed, [26].

39.In Ozcan v Macarthur Disability Services Ltd[17], the Court of Appeal considered whether back injuries sustained by the appellant in three separate incidents could be aggregated. The matter was distinguished from Edmed because the appellant submitted that his later injuries.

[17] [2021] NSWCA 56, (Ozcan).

were materially contributed to by the spinal injuries suffered in the first incident.

40.Macfarlan JA stated:

“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)’…. 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, that is, that of 14 November 2011.”[18]

[18] Ozcan, [16].

41.His Honour continued:

“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 respondent submitted that s 65(2) was a deeming provision because it required multiple injuries arising out of the same incident to be “treated” as one injury.”[19]

[19] Ozcan, [25].

42.What is clear from the authorities is the importance of the injurious event and its sequelae.

43.There is no dispute that a worker does not need establish that he or she suffered an injury for the purposes of a consequential condition. This was confirmed in Kumar, where Deputy President Roche stated:

“By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”[20]

[20] Kumar, [35].

44.This was also confirmed by Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[21], where he considered the principles discussed in Kumar and Bouchmouni. He stated:

[21] [2016] NSWWCCPD 23 (Brennan).

“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar, the relevant finding was based on the existence of symptoms.”[22]

[22] Brennan, [169].

45.The issue that I need to determine involves the  interpretation of the legislation. The principles of statutory interpretation are well established and have been confirmed by the High Court in Project Blue Sky v Australian Broadcasting Authority[23] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[24], and in the Commission in Hesami v Hong Australia Corporation Pty Ltd[25] and Abu-Ali.

[23] [1998] HCA 28; 194 CLR 355.

[24] [2009] HCA 41; 239 CLR 27 (Alcan).

[25] [2011] NSWWCCPD 14.

46.One must interpret the ordinary and grammatical meaning of the text, the language and structure of the legislation, the legal and historical context, and the purpose of the statute in order to come to a reasonable conclusion as to its meaning and application.

47.Section 4 of  the 1987 Act  provides a definition of the term “injury”, but as Deputy President Roche stated in Edmed, it does not assist when the question of aggregation arises. For the purposes of s 322(3) of the 1998 Act, the term “injury” can only mean the “pathology” that has resulted from the incident or injurious event.

48.The entitlement to lump sum compensation for psychological injures was introduced by the Workers Compensation Legislation Amendment Act 2001 and commenced on 1 January 2002.

49.The reasoning behind this amendment was explained by the Minister for Police, Paul Whelan, in the second reading speech in the Legislative Assembly  on 19 June 2001. He stated:

“I specifically draw attention to the proposed arrangements for compensating permanent impairments caused by psychological injuries. Under the current legislative scheme, a worker who suffers a permanent psychological impairment receives nothing in the way of permanent loss compensation. The worker only receives weekly benefits and medical expenses, but nothing for the ongoing impact on his or her life. These workers, who might include victims of violent assaults in the workplace or armed hold-ups, would presently be left to pursue damages under the common law system if they can demonstrate fault, with all the risks and costly legal fees that entails.

The bill allows workers who suffer a permanent psychological or psychiatric impairment arising directly from the workplace to be compensated with lump sum benefits. The provisions are limited to those suffering a primary psychological injury, that is, a psychological injury that arises directly from an event in the workplace—such as an armed hold-up or violent assault—rather than as a consequence of or secondary to a physical or other injury. Workers will need to show that they have a recognised psychological or psychiatric impairment. Further, the provisions will be subject to a threshold prescribed by regulations. The Government considers this to be necessary because of the difficulties associated with diagnosing and distinguishing work-related impairments and based on advice from experts in the field that minor psychological impairments are common and need not impact on a worker's capacity to continue in employment”.

50.The Minister highlighted that no compensation would be payable for a psychological injury that was “as a consequence of or secondary to a physical or other injury”. He did not refer to the term “condition”.

51.Section 65 of the 1987 Act provides that when a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury and will be compensated together. There is nothing ambiguous about the terms of this section. The section also includes a note about the restrictions imposed in s 65A of the 1987 Act.

52.The heading of Section 65A of the 1987 Act refers to “Special provisions for psychological and psychiatric injury”. Sections 65A(1) and 65A(2) of the 1987 Act provide that no compensation is payable in respect of permanent impairment that results from a secondary psychological injury. There is nothing controversial about these sections, and they are of no relevance to the current matter in dispute.

53.Section 65A(4) of the 1987 Act limits a worker to one payment of compensation if he or she suffers a primary psychological injury and a physical injury arising out of the same incident or injurious event, and both injuries are assessed separately.

54.Interestingly, s 65A(5) of the 1987 Act provides definitions of primary and secondary psychological “injuries”. It defines a primary psychological injury as one that is not a secondary psychological “injury”, and a secondary psychological “injury” as one that arises as a consequence of, or secondary to, a physical injury.

55.The section does not use the terms “consequential condition” or “secondary condition”, and these terms do not appear in any of the workers compensation Acts or associated legislation. So, in the only instance in the legalisation that there is refence to the term “secondary”, it describes it in terms of an “injury” rather than a “condition”. Of course in this matter, the secondary condition is in fact physical in nature.

56.In Kooragang, the deceased suffered a back injury, became depressed and eventually suffered a fatal heart attack. It was held at first instance and on appeal that the deceased’s death resulted from his injury. In other words, the deceased heart attack and death on
8 June 1992 resulted from the incident when he injured his back on 4 August 1981.

57.Kirby J stated:

“…. it has been well recognized in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[26]

[26] Kooragang, [462].

58.It is accepted that an injury or pathology results from an incident or an injurious event. In the present matter, there was only one incident or injurious event. The applicant’s psychological injury or pathology resulted from the incident on 13 September 2018. This incident set in train a series of events that resulted in the applicant developing physical pathology, namely alcoholic cardiomyopathy.

59.True it is that the applicant’s has a secondary physical “condition”, but that terminology is not defined in the Act. The psychological injury sustained in the incident or injurious event on
13 September 2018 caused the alcoholic cardiomyopathy. That pathology resulted from the same injurious event. According to Edmed, they should be aggregated, but this is prohibited by s 65(4) of the 1987 Act.

60.If it was intended that a worker receive compensation for a primary psychological injury and a secondary physical condition resulting from the same injurious event, there would have been the inclusion of a definition of a “secondary condition” and a provision to that effect in the 1987 and/or 1998 Acts.

61.Similarly, the Guidelines do not include the term “secondary condition”. They stipulate that impairments resulting from more than one injury arising out of the same incident are to be assessed together, except in the case of psychiatric or psychological injuries. There is no suggestion of aggregation when impairments arise from the same injurious event.
               

62.There is no provision similar to s 65A(4) of the 1987 Act that prevents a worker from receiving compensation for a secondary physical condition that results from the primary physical injury. The fact that s 65A(4) of the Act was enacted suggests that it was intended that workers had a choice to elect between the compensation payable in respect of physical and psychological pathology arising from the one injurious event, whichever was more financially beneficial.

63.The Acts only refer to “injuries” and aggregation of impairments arising from the same incident. In this matter, there was only one injurious event, namely the incident on
13 September 2018, and the impairments result from that incident. 

64.Section 65A(4) of the 1987 Act prohibits aggregation if a worker suffers a primary psychological injury and a physical injury arising out of the same incident or injurious event.

65.Accordingly, the applicant is not entitled to aggregate the assessments relating to his primary psychological injury and his secondary physical condition, so he is limited to the more beneficial monetary amount.

66.The assessment of 24% whole person impairment due to a psychological injury sustained on 13 September 2018 amounts to $64,220, whereas 50% whole person impairment of the cardiovascular system amounts to $185,190.

67.Therefore, the applicant is entitled to receive $185,190 in respect of 50% whole person impairment of the cardiovascular system due to injury sustained on 13 September 2018.

FINDINGS

68.The applicant is not entitled to aggregate the assessment of whole person impairment due to a psychological injury sustained on 13 September 2018 with the assessment of whole person impairment of the cardiovascular system that resulted from the psychological injury sustained on 13 September 2018.

ORDERS

69.The respondent to pay the applicant $185,190 in respect of 50% whole person impairment of the cardiovascular system due to injury sustained on 13 September 2018 pursuant to s 66 of the 1987 Act.