Tokich v Tokich Holdings Pty Ltd
[2015] NSWWCCPD 72
•21 December 2015
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 | |
| APPELLANT: | Robert Tokich | |
| RESPONDENT: | Tokich Holdings Pty Ltd | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-669/15 | |
| ARBITRATOR: | Mr J Harris | |
| DATE OF ARBITRATOR’S DECISION: | 18 August 2015 | |
| DATE OF APPEAL HEARING: | 18 December 2015 | |
| DATE OF APPEAL DECISION: | 21 December 2015 | |
| SUBJECT MATTER OF DECISION: | Claim for permanent impairment compensation for primary psychological injury where prior claim made for such compensation for physical injury arising out of the same incident; whether worker making more than one claim for “an injury”; ss 65, 66(1A) and 65A of the Workers Compensation Act 1987; extension of time to appeal; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 | |
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |
| HEARING: | Oral | |
| REPRESENTATION: | Appellant: | Mr R Hanrahan, instructed by Maurice Blackburn Pty Ltd |
| Respondent: | Mr A Parker, instructed by Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Time to appeal is extended until 18 September 2015. 2. The Arbitrator’s determination of 18 August 2015 is revoked and the following orders are made: 1. The applicant worker’s claim for permanent impairment compensation as a result of his primary psychological injury arising out of the assault on 23 December 2004 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. 2. The Approved Medical Specialist is to be provided with all documents in the Commission’s file. | |
INTRODUCTION
This appeal concerns a claim for permanent impairment compensation for a primary psychological injury in circumstances where the worker had previously claimed, and been paid, permanent impairment compensation for permanent impairment that resulted from physical injuries received in the same incident.
The matter involves the interpretation and operation of s 65A of the Workers Compensation Act 1987 (the 1987 Act), which has special provisions for permanent impairment compensation for psychological/psychiatric injuries, and s 66(1A), which restricts to one the number of claims a worker can make “for permanent impairment compensation in respect of the permanent impairment that results from an injury”.
The Arbitrator found that, having made a claim for permanent impairment compensation in respect of the permanent impairment that resulted from his physical injuries, s 66(1A) prevented the worker from claiming such compensation for the permanent impairment that resulted from the primary psychological injury that arose out of the same incident. For the reasons explained below the appeal is successful and the Arbitrator’s determination is revoked.
BACKGROUND
On 23 December 2004, the appellant worker, Robert Tokich, was assaulted in the course of his employment with the respondent. It is not now disputed that, as a result of the assault, he suffered physical injuries to his cervical spine and lumbar spine and a primary psychological injury in the form of post-traumatic stress disorder and major depression.
On a date after 19 June 2012, the date on which s 66(1A) took effect, it having been introduced with a range of amendments in the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), Mr Tokich claimed permanent impairment compensation in respect of the permanent impairment that resulted from his physical injuries. The Commission referred that claim to an Approved Medical Specialist (AMS) for assessment.
As a result of the assault in 2004, Mr Tokich developed psychological symptoms that had not been adequately treated, even after he saw a psychiatrist, Dr Stephen Hook, in early October 2009. Mr Tokich’s psychological symptoms remained under-treated or misdiagnosed at the time of his claim for permanent impairment compensation for his physical injuries.
At the time of the claim for permanent impairment compensation for Mr Tokich’s physical injuries, there was no assessment of whole person impairment as a result of his primary psychological injury. As a result, Mr Tokich was not in a position to claim, and did not claim, permanent impairment compensation for that injury.
On 23 May 2013, the AMS, Dr Davies, issued a Medical Assessment Certificate in which he assessed Mr Tokich to have, as a result of injuries to his cervical spine and lumbar spine in the assault, a whole person impairment of 12 per cent.
On 5 September 2013, the Commission issued a consent order in which the respondent agreed to pay, consistent with Dr Davies’ assessment, permanent impairment compensation of $15,400 for the 12 per cent whole person impairment assessed to have resulted from the physical injuries, plus compensation for pain and suffering under s 67 of the 1987 Act of $12,000. The insurer has paid these amounts.
On 19 September 2014, Mr Tokich was examined by Dr Akkerman, consultant psychiatrist qualified by his solicitors. Dr Akkerman diagnosed Mr Tokich to have post-traumatic stress disorder and major depression, both conditions having been caused by the assault in 2004. He assessed Mr Tokich to have, as a result of his psychological symptoms from the assault, a 25 per cent whole person impairment.
On 2 October 2014, Mr Tokich claimed “further” permanent impairment compensation of $24,500 in respect of a whole person impairment of 25 per cent as a result of a psychological injury received in the 2004 assault. This claim was under s 65A(4) of the 1987 Act, which states that if a worker receives a primary psychological injury and a physical injury arising out of the same incident, the worker is entitled to receive compensation for (permanent) impairment resulting from “only one of those injuries”, being whichever results in the greater amount of compensation being payable to the worker.
The issue determined by the Arbitrator, which is the subject of this appeal, is whether s 66(1A) prevents Mr Tokich from pursuing a claim for permanent impairment compensation for his accepted primary psychological injury on the ground that he had already made one claim for such compensation for his physical injuries received in the assault.
The Arbitrator held (at [65]) that, under s 65A, a worker who has separate conditions (a physical condition and a psychological condition arising from the one incident) is entitled to separate assessments of whole person impairment as a result of those conditions. On the question of whether a worker can make separate claims for the separate entitlements under s 65A, he held that though s 65A(4) provides for separate assessments of the physical impairments and the psychological impairments, it does not “specifically provide or allow for separate claims” ([69]).
Accordingly, when read in this manner, the Arbitrator held that there is no inconsistency between s 65A and s 66(1A) and that “[a]ll potential impairments must be made at the one time and in the one claim for permanent impairment compensation” ([71]). As Mr Tokich had previously made a claim for permanent impairment compensation in respect of his physical injuries, s 66(1A) prevented him from making a further claim in respect of whole person impairment resulting from his primary psychological injury.
The Commission issued a Certificate of Determination on 18 August 2015 in the following terms:
“1.I find that the Applicant has made a prior claim for permanent impairment compensation in respect of the injury on 23 December 2004.
2.Award in favour of the Respondent in respect of the further claim for permanent impairment compensation made on 2 October 2014.”
Mr Tokich has appealed.
LEAVE TO APPEAL
Time
Appeals to a Presidential member under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) must be made within 28 days of the decision appealed against (s 352(4)). The appeal in the present matter was originally lodged on 18 September 2015, three days out of time. Pursuant to a direction issued by the Commission on 24 September 2015, Mr Tokich’s solicitors filed an Amended Application – Appeal Against Decision of Arbitrator on 8 October 2015 in which he sought, among other things, that time to appeal be extended.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In support of the application to extend time to appeal, Mr Tokich’s counsel, Mr Hanrahan, submitted:
(a) the case involves a question of statutory interpretation arising out of the amendments introduced by the 2012 amending Act, which introduced s 66(1A);
(b) the questions raised at the arbitration and, to a limited extent, in the appeal, involve issues that have arisen in a number of other Presidential appeals, as well as the decision of the Court of Appeal in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid), which reversed the President’s decision in Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84;
(c) the Arbitrator referred to the President’s decision in Cram Fluid. The Court of Appeal’s decision in that case, delivered on 27 August 2015 (nine days after the Arbitrator’s decision), “required a reconsideration and revision of the Submissions earlier prepared with respect to this Appeal”, it being considered relevant to Mr Tokich’s prospects of success on appeal that Cram Fluid be considered in detail;
(d) when the Arbitrator delivered his decision on 18 August 2015, a new solicitor had assumed conduct of the matter on behalf of Mr Tokich;
(e) on 28 August 2015, the Commission issued an e-Bulletin dealing with the potential legal and procedural implications of Cram Fluid. It invited parties to make submissions on whether or not matters affected by Cram Fluid should be withdrawn. The new solicitor conducted an urgent review of a large number of matters and became “somewhat overwhelmed by the process”;
(f) if Mr Tokich is precluded from proceeding further he will be prevented from receiving an additional $9,000 and will be denied the benefit of having his psychiatric impairment conclusively assessed by an AMS;
(g) the question raised in the appeal is an important one for a broad range of claimants and the administration of justice would be best served if the question is considered now and reasons provided by a Presidential member, and
(h) the matter is one of significance within the jurisdiction of the Commission and the substantial merits of the case should be considered in this broader context.
The respondent has opposed time being extended.
I have found Mr Hanrahan’s submissions to be less than satisfactory. He has not attempted to explain properly why the appeal was filed out of time. I infer that the appeal was lodged late because of an error or oversight by Mr Tokich’s legal advisers. On their own, inadvertence or administrative errors by legal practitioners do not amount to exceptional circumstances that justify the extension of time to appeal (Department of Education & Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55).
Though Mr Hanrahan referred to Cram Fluid, the contention that the Court of Appeal’s decision in that case required “reconsideration and revision” of the submissions earlier prepared with respect to the appeal is implausible in the extreme. It implies that the submissions in support of the appeal had been prepared within nine days of the Arbitrator’s decision being delivered. That seems unlikely, to say the least.
Moreover, Mr Hanrahan’s submissions filed in support of the appeal do not refer to Cram Fluid and it is difficult to see how that decision caused or contributed to the appeal being filed out of time. Even if it were accepted that Cram Fluid caused the submissions in support of the appeal to be revised, given that that case was decided on 27 August 2015, that does not explain why the appeal was not filed until 18 September 2015.
It is correct that the Arbitrator referred to the President’s decision in Cram Fluid. However, he merely noted that the Court of Appeal had reserved its decision and that the issue in that case concerned the correctness of the Senior Arbitrator’s decision in Robin-True v Stella Maris College [2015] NSWWCC 179 (Robin-True).
Robin-True concerned the operation of s 66(1A) and s 66A, which deals with complying agreements. It did not directly touch on the issue in the present appeal. In light of the Court of Appeal’s decision in Cram Fluid, Robin-True was revoked on appeal to a Presidential member: Stella Maris College v Robin-True [2015] NSWWCCPD 57. I do not accept the implied submission that the Court of Appeal decision in Cram Fluid caused or contributed to the present appeal being filed out of time, though it may be that the e-Bulletin issued on 28 August 2015 was a contributing factor.
It is accepted that the decision may have importance for a broad range of applicants in future cases in the Commission and that it has significant financial consequences for Mr Tokich. However, the weight to be attached to these points depends on the prospects of success of the appeal, if time to appeal is extended. For the reasons explained below, the prospects of success are good.
The authorities are clear that if the explanation for the delay is less than satisfactory, it may be relevant that the claimant shows that his or her case has more substantial merit than merely being fairly arguable (Hodgson JA in Tomko v Palasty (No 2) [2007] NSWCA 369 at [14]). This observation is relevant in the present case.
Though the explanation for the delay in lodging the appeal is less than satisfactory, I am satisfied, not without considerable hesitation, that there are exceptional circumstances that justify the extension of time to appeal. My reasons are as follows:
(a) the appeal is out of time by only a few days;
(b) there is no prejudice to the respondent if time is extended;
(c) the issues raised are of general importance to proceedings in the Commission involving the interpretation and operation of s 65A and s 66(1A), and
(d) Mr Tokich’s argument on appeal has substantial merit and is more than fairly arguable.
Time to appeal is extended to 18 September 2015.
LEGISLATION
Sections 65 and 65A of the 1987 Act 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.
(3)If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.
…
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.”
Section 66(1A) of the 1987 Act was introduced by the 2012 amending Act and operates from 19 June 2012. It provides:
“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Section 322 of the 1998 Act 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 WorkCover 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)An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist 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.”
Section 322A of the 1998 Act was also introduced by the 2012 amending Act and commenced operation on 27 June 2012. It provides:
“322A One assessment only of degree of permanent impairment
(1)Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2)The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4)This section does not affect the operation of section 327 (Appeal against medical assessment).”
Section 65 was amended by the 2012 amending Act (Sch 2, cl 2.1). The amendments deleted a reference to “pain and suffering compensation” in s 65(3). Similar, although not identical, amendments were made to sub-sections (1) and (3) of 65A and the note below sub-section (1).
ISSUE IN DISPUTE
The issue in dispute on appeal was originally identified as whether the Arbitrator erred in failing to give effect to the words in s 65A(4)(b), which specifically mandate that “the worker is entitled to receive compensation … for impairment resulting from whichever injury results in the greater amount of compensation being payable under this Division”.
At the oral hearing of the appeal, the issue was narrowed to be whether “injury” in s 66(1A) means the incident concerned or the pathology that has resulted from the incident. That directed attention to whether the Arbitrator erred in failing to find that Mr Tokich was entitled to make one claim for his physical injury and one claim for his primary psychological injury, where both injuries arose from the same incident.
SUBMISSIONS
Mr Hanrahan’s written submissions essentially made two points. First, once the qualifying and entitling words of s 65A(4)(b) have been taken into account, Mr Tokich has made only one valid claim. Second, that the claim, as originally presented, has not been finally determined and the later evidence of impairment of a psychological type “enlivens s 65A(4)(b), to the effect that the original claim is re-opened or amended to allow for that section to do the work it was expressly intended to do” (Woolworths v Stafford [2015] NSWWCCPD 36 (Stafford)).
At the oral hearing of the appeal, Mr Hanrahan submitted that “an injury” in s 66(1A) refers to the pathology caused by the incident concerned. Applying s 65A, Mr Tokich suffered a physical injury and a primary psychological injury and s 66(1A) restricted him to one claim in respect of each of those injuries. Therefore, by making his claim for the primary psychological injury, he had not breached the one claim restriction.
Counsel for the respondent, Mr Parker, submitted that, in context, “an injury” in s 66(1A) means the incident or event. Therefore, as Mr Tokich has made one claim in respect of the incident on 23 December 2004, he is not entitled to make a second claim for his primary psychological injury. That follows because of the restrictive nature of the provision and because of the plain and ordinary meaning of the words used.
Mr Parker contended that if “injury” in s 66(1A) means “incident” then all the relevant statutory provisions fit together. Section 65A(4) still has work to do, and can have two assessments, one for the primary psychological injury and one for the physical injury, but can only make one claim for permanent impairment compensation. To interpret “injury” in s 66(1A) to mean pathology creates a tension between the provisions when it is not obvious that it means pathology.
He said it was not the meaning of “injury” that was important; it was the meaning of “claim”. The new provision means that insurers only have to consider one claim, though there may be two assessments under s 65A as part of that claim.
DISCUSSION AND FINDINGS
The points made in Mr Hanrahan’s written submissions cannot be accepted. Mr Tokich’s claim for permanent impairment compensation for the permanent impairment that resulted from his physical injuries was assessed by an AMS and ultimately paid. That is, the claim for Mr Tokich’s physical injuries was finally determined. That was a valid claim for permanent impairment compensation.
Though Mr Hanrahan has cited Stafford in apparent support of his arguments, he did not refer to any specific passage that provides that support. In Stafford, the issue was whether “claim” in s 66(1A) means “a demand” for payment of permanent impairment compensation, or a claim for such compensation that is capable of payment in accordance with the 1987 Act.
It was held that the worker’s claim for permanent impairment compensation in respect of a seven per cent whole person impairment, made after the introduction of s 66(1A), was not a valid claim because it was under the 10 per cent threshold introduced by the 2012 amending Act and could not have resulted in the payment of compensation. Therefore, when a later assessment showed the worker to have a whole person impairment of greater than 10 per cent, he was entitled to amend his claim to seek compensation for the higher impairment. The amended claim was held to be his “one claim” under s 66(1A).
Nothing in Stafford assists Mr Tokich. His first claim was a valid claim. An AMS assessed it and a consent award was entered in terms consistent with the AMS’s assessment. The amount claimed has been paid. Thus, unlike Stafford, the claim for whole person impairment as a result of Mr Tokich’s physical injuries was a valid claim that qualified as his “one claim” for those injuries.
That claim is not “re-opened” by the later claim for permanent impairment compensation for the primary psychological injury. The claim for permanent impairment compensation for the primary psychological injury is an independent and separate claim that must be assessed on its merits.
Dealing with the points argued by Mr Hanrahan at the oral hearing of the appeal, s 66(1A) restricts a worker to “one claim … for permanent impairment compensation in respect of the permanent impairment that results from an injury” (emphasis added). Thus, in the present case, the application of s 66(1A) turns on the meaning of “an injury”. The question is whether the one claim restriction means one claim for all injuries (of any type) arising from an “incident” or, in cases where the worker has suffered a primary psychological injury and a physical injury arising out of the same incident, it means that one claim may be made for the primary psychological injury (or injuries) and one claim for the physical injury (or injuries). For the reasons explained below, the second interpretation is to be preferred.
“Injury” is defined, in slightly different terms, in both the 1987 Act and the 1998 Act. The differences in the two definitions are not material in the present case. Both define injury as meaning “personal injury arising out of or in the course of employment” and including a disease injury, which is also defined, but not relevant in the present appeal.
The Commission has long accepted that “injury”, as defined, refers to “both the [injurious] event and the pathology arising from it” (Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423; applied in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed) and other cases). To determine the meaning of “injury” in a particular case, one must consider the context in which it is used (see Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [251]–[253] (overturned, on a different point, in Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335) where it was stated that an “incident” (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury and that the relevant “injury” in s 4 is the pathology that has arisen out of or in the course of the employment.)
In Edmed, it was stated, at [26]:
“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.” (emphasis included in original)
With one modification, this passage was described as an “accurate summary” by Barrett JA (Ward JA and Tobias AJA agreeing) in Galluzzo v Little [2013] NSWCA 116 at [41]. His Honour added:
“The provisions envisage that an ‘injury’ (or several ‘injuries’) will ‘arise from’ an ‘incident’ and that one or more ‘impairments’ will ‘result from’ the ‘injury’ (or ‘injuries’); and that it is ‘impairment’ or ‘impairments’ that must be assessed. The penultimate sentence in the quoted extract [in Edmed] should therefore read:
‘The impairments resulting from those ‘injuries’ are to be assessed together.’”
It is therefore accepted that if a worker receives more than one injury (meaning more than one pathology) “arising out of the same incident, those injuries are together to be treated as one injury for the purposes of” (s 65(2)) permanent impairment compensation in Div 4 of the 1987 Act. However, this provision is subject to a “Note”. Though the note is not part of the Act (s 35(2) of the Interpretation Act 1987), it can be considered in the interpretation of the provision (s 34(2)(a) of the Interpretation Act 1987).
The note adds an important point of clarification. It confirms that multiple (physical) injuries received in the one incident are to be compensated together and not as separate injuries. However, “[p]hysical injuries and psychological/psychiatric injuries are not assessed together. See section 65A” (emphasis added).
Section 65A is headed “Special provisions for psychological and psychiatric injury”. Thus, at the outset, the section acknowledges that there is a difference between a psychological/psychiatric injury, on the one hand, and a physical injury, on the other, and that different provisions apply to each kind of injury.
Sub-section (2) of s 65A provides that, 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. As it is accepted that Mr Tokich’s condition is a primary psychological injury, this provision can be put to one side.
Sub-section (3) of s 65A sets a different threshold for the recovery of permanent impairment compensation for a primary psychological injury than for a physical injury. For a primary psychological injury, no permanent impairment compensation is payable unless the degree of permanent impairment that results from the injury is at least 15 per cent (s 65A(3)). For a physical injury, no permanent impairment compensation is payable unless the worker has “receive[d] an injury that results in a degree of permanent impairment greater than 10%” (s 66(1)).
Sub-section (4) of s 65A makes the distinction between a primary psychological injury and a physical injury even clearer. If, arising out of the same incident, a worker receives a primary psychological injury and a physical injury, as has happened in the present case, the worker is only entitled to receive (permanent impairment) compensation under Div 4 in respect of the impairment resulting from one of those injuries. For that purpose the following 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 what is said in s 65(2)) (s 65A(4)(a));
(b) the worker is entitled to receive compensation under Div 4 for (permanent) impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under Div 4 for (the permanent) impairment, but is not entitled to receive compensation under Div 4 for impairment resulting from “the other injury” (s 65A(4)(b)), and
(c) in the absence of agreement, the question of which injury results in the greater amount of compensation is to be determined by the Commission (s 65A(4)(c)).
The “Note” to s 65A(4) states that if there is more than one physical injury, those injuries “will still be assessed together as one injury under” s 322 of the 1998 Act, but “separately from any psychological injury”. If there is more than one psychological injury, those psychological injuries “will be assessed together as one injury, but separately from any physical injury”.
The combined effect of the above provisions is that multiple physical injuries (pathologies), and secondary psychological injuries, arising out of the one incident (injurious event) are to be treated as one injury (s 65(2)). They are assessed and compensated together as one injury. Under s 66(1A), a worker is only entitled to make one claim for permanent impairment compensation for the permanent impairment that has resulted from those injuries.
However, different (“special”) provisions apply to a psychological/psychiatric injury or injuries that arise out of the same incident in which the worker has also suffered a physical injury or injuries. In that situation, the legislation expressly acknowledges that a primary psychological injury is a separate and distinct injury from a physical injury. The degree of permanent impairment that results from the psychological/psychiatric injury (or injuries) must be assessed separately from the physical injury (or injuries). In addition, a different threshold needs to be satisfied before any permanent impairment compensation is payable for a primary psychological injury (or injuries).
It follows that, for the relevant provisions to work in harmony, when dealing with a primary psychological injury to which s 65A applies, the reference to “an injury” in s 66(1A) must distinguish between a primary psychological injury and a physical injury. In other words, a claim for permanent impairment compensation for the permanent impairment that has resulted from a physical injury or injuries arising out of one incident (that is, multiple pathologies from the one injurious event) is different from and separate to a claim for permanent impairment compensation for permanent impairment that has resulted from a primary psychological injury or injuries arising out of the same incident.
Thus, Mr Tokich’s claim for permanent impairment compensation for the permanent impairment that resulted from his physical injuries, that is the injuries to his neck and back, was his one claim in respect of those injuries. As he made that claim after 19 June 2012, he is not entitled to make a second claim for such compensation for those injuries. However, as s 65A expressly acknowledges that his primary psychological injury is a separate and distinct injury, even though it arose out of the same incident, he is entitled to make one claim for permanent impairment compensation for permanent impairment that has resulted from that injury.
The above interpretation is consistent with the text of the legislation, read in context, and with a purposive construction of the words used. Though there may well be some cases where a claimant’s physical injuries and primary psychological injuries can be assessed at or about the same time, there will be many cases, the present case being an example, where that is not so.
In circumstances where s 65A expressly distinguishes between physical injuries and primary psychological injuries arising from the same incident, it would be illogical and contrary to commonsense to require claims for permanent impairment compensation for those injuries to be made at the same time. They are clearly different injuries and are treated differently in s 65A. They are not intended to be assessed “together” (s 65(2)) and cannot be treated as “one injury”, as is required for multiple physical injuries that arise from the one incident.
It therefore follows that, in cases involving physical injuries and primary psychological injuries arising out of the same incident, the reference in s 66(1A) to “one claim” for permanent impairment compensation in respect of the permanent impairment that results from “an injury” is a reference to one claim for the physical injuries and one claim for the primary psychological injuries. As a result, Mr Tokich’s claim for permanent impairment compensation for his primary psychological injury is not a second claim, but is his one claim for that injury and the Arbitrator erred in finding to the contrary.
It does not matter that s 65A does not “specifically provide or allow for separate claims” ([69]) for a primary psychological injury and a physical injury. The right to bring a separate claim for a primary psychological injury arises from the terms of s 66(1A), which permits one claim for “an injury”. This is consistent with s 65A, which makes it clear that a primary psychological injury is a separate and distinct injury from a physical injury, even when those injuries arise out of the same incident.
This interpretation is reinforced by the combined effect of s 322(3) and the notes to that sub-section and to s 65(2). Consistent with s 65(2), s 322(3) states that 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. However, the notes explain that physical injuries and psychological/psychiatric injuries, which arise from the same incident, are “not assessed together”.
So much is also acknowledged in the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd ed, 6 February 2009, which state that 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, “with the exception of impairments arising from psychological and psychiatric injuries” (cl 1.18). (This point is also acknowledged at cl 1.19 of the proposed 4th edition of the Guides, which do not take effect until 1 April 2016.)
Nothing in s 322A is inconsistent with this approach. That is because, like s 66(1A), sub-section (2) of s 322A makes it clear that the “one assessment” restriction applies to “the injury concerned” (emphasis added). Similarly, the restriction on the referral of a medical dispute about the degree of permanent impairment of a worker relates to “an injury” (s 322A(3)). Therefore, where, as in the present case, there is more than one injury, namely a primary psychological injury and a physical injury arising out of the same incident, there can be an assessment for each of those injuries. Any other interpretation would mean that a person in Mr Tokich’s position would not be entitled to have his primary psychological injury assessed because he had already had an assessment of his physical injuries. That is clearly not what the legislation intended.
The intention of s 65A, as gleaned from the words used, is that a worker who has suffered a primary psychological injury and a physical injury arising out of the same incident shall be compensated for whichever injury results in the greater amount of (permanent impairment) compensation payable under Div 4 of the 1987 Act. That can only be determined by there being two claims and two assessments, one for the physical injury and one for the primary psychological injury. The amount of permanent impairment compensation payable cannot be determined until appropriately qualified AMSs have assessed the whole person impairment that has resulted from the two separate injuries (the primary psychological injury and the physical injury). For that to be done there must be (at least) two separate assessments, one by a psychiatrist and one by a different specialist to assess the physical injury or injuries.
The end result gives effect to the intention of s 66(1A), namely, to restrict to one the number of claims a worker may make for permanent impairment compensation in respect of the permanent impairment that results from “an injury”. It also acknowledges the “special” provisions in s 65A, which distinguish between primary psychological injuries and physical injuries that arise from the same incident. It gives a harmonious interpretation to the provisions overall and does so in a way that is consistent with the text and context of the legislation. It is also consistent with the exception recorded in the note to s 65(2).
The result is fair and workable. Mr Tokich has suffered a primary psychological injury and a physical injury in the same incident. He is only entitled to receive permanent impairment compensation in respect of the permanent impairment resulting from whichever injury results in the greater amount of compensation being payable. That can only be determined after the permanent impairment from his two separate injuries have been claimed and assessed. Having been compensated for his physical injuries, the insurer is entitled to credit for payments previously made for the physical injuries.
CONCLUSION
It follows that, in the circumstances of this case, the Arbitrator erred in concluding that “[a]ll potential impairments must be made at the one time and in the one claim for permanent impairment compensation” ([71]) and his determination must be revoked. Mr Tokich is entitled to make one claim for his primary psychological injury and is entitled to have that claim assessed by an AMS.
DECISION
Time to appeal is extended until 18 September 2015.
The Arbitrator’s determination of 18 August 2015 is revoked and the following orders are made:
1. The applicant worker’s claim for permanent impairment compensation as a result of his primary psychological injury arising out of the assault on 23 December 2004 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment.
2. The Approved Medical Specialist is to be provided with all documents in the Commission’s file.
Bill Roche
Acting President
21 December 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
10
11
0