Zdanovits v Officemax Australia Limited
[2021] NSWPIC 129
•20 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Zdanovits v Officemax Australia Limited [2021] NSWPIC 129 |
| APPLICANT: | Konstantin Zdanovits |
| RESPONDENT: | Officemax Australia Limited |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 20 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation; matter remitted by consent for referral to an Approved Medical Specialist (AMS) with two dates of injury, both relating to psychological injury; AMS issued a Medical Assessment Certificate attributing 6% whole person impairment to the first date of injury, and 14% to the second; whether the applicant is entitled to aggregate the impairments, or whether an award for the respondent should be entered, as neither impairment reaches the threshold for an award of permanent impairment compensation; Held- the evidence supports a finding that the impairments arising from the two injuries are as a result of identical pathology, namely psychological injury (or more specifically, Post Traumatic Stress Disorder); Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 followed; even if the impairments arising from the injuries do not arise from identical pathology, the evidence establishes the first injury materially contributed to the second; Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 followed; the applicant is entitled to aggregate the impairments arising from the two injuries; order the respondent to pay the applicant permanent impairment compensation with respect to a 19% whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant suffered psychological injury in the course of his employment with the respondent on 11 August 2017 and 21 December 2017 (deemed). 2. The injuries referred to in (1) above have a common underlying pathology. 3. The injury on 11 August 2017 materially contributed to the injury with a deemed date of 21 December 2017. 4. Pursuant to section 65(20 of the Workers Compensation Act 1987, the injuries referred to in (1) above are to be treated as one injury for the purposes of determining the degree of permanent impairment which the applicant suffers. 5. The respondent is to pay the applicant permanent impairment compensation with respect to a 19% whole person impairment as a result of the injuries referred to in (1) above. |
STATEMENT OF REASONS
BACKGROUND
Konstantin Zdanovits (the applicant) brings proceedings seeking permanent impairment compensation with respect to psychological injuries suffered in the course of his employment with Officemax Australia Limited (the respondent).
On 30 October 2020, the matter was listed for hearing, at which point the respondent withdrew its denial of liability with respect to the injuries pleaded in the Application to Resolve a Dispute (the Application) and the parties agreed upon a referral to an Approved Medical Specialist (AMS) set out in the Certificate of Determination – Consent Orders in the following terms:
“3. The applicant acknowledges that as a result of an injury on 28 September 2016 he suffered a secondary psychological injury.
4. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for determination of the permanent impairment arising from the following:
Date of injury: (i) 11 August 2017
(ii) 21 December 2017 (deemed)
Body systems referred: Psychological injury
Method of assessment: Whole person impairment.”
On 2 November 2020, the Commission issued an AMS Referral for Permanent Impairment in terms consistent with the Consent Orders.
The secondary psychological injury on 28 September 2016 was not the subject of these proceedings, and when the AMS issued his Medical Assessment Certificate (MAC), he made a 10% deduction for that pre-existing injury. The injury on 11 August 2017 was as a result of an assault at work by a colleague, while the injury with a deemed date of 21 December 2017 related to the nature and conditions of the applicant’s employment, in particular having to continue working with his assailant and with the manner in which his complaints regarding the co-worker were dealt with by management.
In issuing the MAC, the AMS found the applicant suffers from 20% whole person impairment (WPI) as a result of the injuries in issue. He attributed three-tenths of the applicant’s assessed impairment (being 6%) to the assault, and seven-tenths (being 14%) to the nature and conditions of his employment to 21 December 2017. No appeal from the MAC was lodged by either party.
The matter was next listed for telephone conference before me on 14 April 2021, at which time the parties made submissions on the Orders which should be made by the Commission in its Certificate of Determination.
ISSUES FOR DETERMINATION
The parties agree that the only issue which remains in dispute is whether the applicant is entitled to 19% WPI (being the combined value of the 14% and 6% WPI according to the relevant Combined Values chart), or whether the Commission should make an award for the respondent because neither the 14% or 6% WPI assessment satisfy the threshold of 15% WPI prescribed by section 65A of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
The parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
Additionally, the Commission had regard to the following documents:
(a) Certificate of Determination - Consent Order dated 30 October 2020;
(b) AMS Referral for Permanent Impairment dated 2 November 2020;
(c) AMS MAC dated 9 February 2021, and
(d) The parties’ submissions forwarded by email.
Oral evidence
There was no oral evidence called at the telephone conference, however, the parties made oral submissions.
FINDINGS AND REASONS
Whether the assessments of WPI can be combined
It has long been held that “injury” consists of both the injurious event and the pathology which stems from it. In Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed), Deputy President Roche noted at [26]:
“… 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.”
The Deputy President went on to explain that such a construction provides the basis for an injured worker to claim for impairment arising from multiple “injuries” suffered to different body parts in the one event.
At [39] in Edmed, Roche DP also noted:
“Impairments that result from the ‘same injury’ (pathology) are to be assessed together even if they have resulted from different incidents, but the pathology (injury) resulting from each incident must be identical (section 322(2)).”
It is therefore uncontroversial that in certain circumstances, impairments arising from the same pathology suffered in separate incidents may be assessed together. In the recent Court of Appeal decision of Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (Ozcan), the Court of Appeal found no issue with Deputy President Wood’s adding of the WPI percentages referable to two later spinal injuries to those suffered in an earlier incident, because those subsequent injuries were materially contributed to by the spinal injuries suffered in the first incident. At [17] and following, Macfarlan JA, with whom McCallum JA and Simpson AJA agreed, noted:
“17. It is no answer to this reasoning that the injuries suffered in the first incident only materially contributed to, and were not the sole cause of, the injuries suffered in the second and third incidents. If the incidents had occurred in the employment of different employers, more than one employer might have been liable to pay workers compensation (see Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd [1994] HCA 68; (1994) 68 ALJR 525 at 526-7; [1994] HCA 68).
18. The respondent contended that Ms Ozcan’s argument would, if accepted, result ‘in the aggregation of impairments that, in truth, are unconnected to one another’. The impairments are however connected because the first incident injuries materially contributed to them. They therefore ‘arose out of’ and ‘resulted from’ that incident. The likelihood of the consequences of multiple accidents needing to be assessed together is considerable in light of the law’s adoption of a ‘material contribution’ rather than a ‘sole cause’ test.”
In Ozcan, the Court expressed no concluded view on the reasoning in Edmed, because it was unnecessary to do so. Macfarlan JA noted that in Edmed, Roche DP did not address any suggestion the first injury with which that case was concerned materially contributed to the second. His Honour went on:
“The decision did not therefore contradict what I consider to be the correct conclusion in the present case that, because the first spinal injuries contributed to the later ones, the impairments ‘resulting from’ the later injuries, as with those ‘resulting from the first, ‘arose out of’ the incident in which the first were suffered, thereby attracting s 65(2) of the 1987 Act and s 322(3) of the 1998 Act.”
In this matter, the evidence establishes the assault on 11 August 2017 led to the applicant suffering an injury by way of aggravation of a pre-existing Post Traumatic Stress Disorder (PTSD). The AMS has found the respondent’s handling of the aftermath of that assault, which constitutes the nature and conditions of the applicant’s employment after the assault up to 21 December 2017 also contributed to the degree of permanent impairment. The AMS noted:
“There is no easy, or procedurally correct, way to separate the psychological sequelae, and associated impairment, from the two injuries defined in the Certificate of Determination. Because the second date is deemed, it covers everything that happened going back to, but not including, the events of 11 August 2017. Therefore, the symptoms and impairment arise concurrently. It becomes a matter of judgement how much the altercation contributed, compared to how much his perception of inaction and harassment from management contributed.”
The respondent submitted that if the reasoning of the AMS did not adequately explain the reasons for the apportionment between the two dates of injury, the only appropriate remedy was an appeal against the MAC, which had not taken place. In my view, however, the question of aggregation of impairments arising from injuries is one within the provenance of the Commission Member rather than a Medical Assessor (MA) As Macfarlan JA noted in Ozcan, the question of whether another injury or impairment “results from” an injury is a question of fact. Such questions must be determined by the Commission, not by a MA.
In this matter, I accept the impairments arising from the two dates of injury can be aggregated. In so finding, I have regard to the decision in Edmed, and note the findings of pathology referable to each of them are identical psychological injuries. That is, each of the AMS, Dr Wenden (IME for the respondent) and Dr Pilsky, treating psychiatrist all diagnose PTSD. Dr Teoh, IME for the applicant, diagnoses Chronic Adjustment Disorder with Depressed Mood.
I consider that the balance of the medical evidence supports a finding of identical psychological injury, however, even if it is the case that Dr Teoh’s diagnosis is sufficient to constitute separate pathology to PTSD, the preponderance of the medical evidence from the AMS, respondent’s IME and the treating specialist supports a diagnosis of PTSD occasioned by both the assault and the subsequent nature and conditions of employment.
Moreover, even if the principles in Edmed were not applied to the present matter, the recent Court of Appeal decision in Ozcan makes it clear that where one injury materially contributes to a subsequent one, the impairments can be aggregated. I find the circumstances of this matter fit within the reasoning in Ozcan, and that accordingly the applicant is entitled to permanent impairment compensation with respect to the combined impairment as set out in the appropriate Tables.
It was the respondent’s handling of the applicant’s complaints arising out of the first injury which led to the impairment flowing from the “nature and conditions” injury. As such, I am of the view the first injury contributed to the second, and the impairments resulting from the later injury, as with those from the first, arose out of the incident in which they were first suffered. That being so, the applicant’s injuries in my opinion fall within the operation of section 65(2) of the 1987 Act, and the impairments arising from them should be treated as one injury.
As noted in the applicant’s submissions, the applicable Tables indicate the relevant combined WPI in this instance is 19%, and I propose to make orders that the respondent pay the applicant permanent impairment compensation with respect to that degree of whole person impairment.
SUMMARY
For the above reasons, the Commission will make the findings and orders set on page 1.
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