Zhai v Workers Compensation Nominal Insurer

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zhai v Workers Compensation Nominal Insurer & Ors [2022] NSWPIC 202
APPLICANT:	Ivan Bao Ming Zhai
FIRST RESPONDENT:	Ping Wang
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
MEMBER:	John Isaksen
DATE OF DECISION:	6 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments after 260 weeks (section 39 of the Workers Compensation Act 1987 (the 1987 Act); whether worker can combine assessment of permanent impairment for physical injury with assessment of permanent impairment for primary psychological injury from the one injurious event; consideration of the application of section 39 (3) with section 65 of the 1987 Act and section 322 of the Workplace Injury Management and Workers Compensation Act 1998; reference to Hochbaum v RSM Building Services P/L, Abu-Ali v Martin-Brower Australia P/L, and arbitral decision of Hulme v Secretary, Department of Education & Communities; Held– worker cannot combine assessment of permanent impairment for physical injury with assessment of permanent impairment for primary psychological injury from the one injurious event to be able to receive weekly payments beyond 260 weeks.
DETERMINATIONS MADE:	The applicant cannot combine the assessment of permanent impairment for his physical injury with the assessment of permanent impairment for his psychological injury, both of which result from injury sustained on 25 February 2006, to allow him to continue to receive weekly payments of compensation after an aggregate period of 260 weeks.
ORDERS MADE:	An award for the second respondent for this application.

STATEMENT OF REASONS

BACKGROUND

Ivan Bao Ming Zhai, the applicant in these proceedings, sustained an injury to his left hand and forearm on 25 February 2006 while employed as a labourer with the first respondent, Ping Wang.
The first respondent was not insured at the time of the injury and all workers compensation benefits which have resulted from this injury have been paid for by the second respondent, Workers Compensation Nominal Insurer.
A Complying Agreement was entered into between Mr Zhai and the second respondent in September 2010 whereby it was agreed that Mr Zhai had 5% whole person impairment as a result of the injury sustained on 25 February 2006, comprising 4% whole person impairment for injury to the left upper extremity and 1% whole person impairment for scarring.
Arbitrator Batchelor made a finding on 16 May 2018 in matter no. 621/18 that Mr Zhai sustained a primary psychological injury on 25 February 2006 in the course of his employment with the first respondent in the form of post-traumatic stress disorder, major depression, and aggravation of schizophrenia. Arbitrator Batchelor remitted Mr Zhai’s claim for permanent impairment for primary psychological injury to the Registrar of the Workers Compensation Commission for referral to an Approved Medical Specialist.
Dr Morris, Approved Medical Specialist, assessed Mr Zhai as having 20% whole person impairment as a result of the primary psychological injury sustained on 25 February 2006 in a Medical Assessment Certificate dated 25 June 2021.
The second respondent terminated weekly payments of compensation that were being paid to Mr Zhai on 14 September 2021 on the grounds that Mr Zhai did not meet the criteria for weekly payments to continue to be paid to him pursuant to section 39 (2) of the Workers Compensation Act 1987 (the 1987 Act) because the injury sustained by Mr Zhai did not result in permanent impairment that was more than 20%.
Dr Morris assessed Mr Zhai as being in Class 5 for Employability and wrote: “Mr Zhai’s intrusive psychotic symptoms, severe extremely high levels of agitation and depressed mood, and reduced energy and motivation would prevent him from working at all”. The second respondent has not provided any evidence to dispute that Mr Zhai has had no current work capacity since 14 September 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether Mr Zhai can combine the assessments of permanent impairment for a physical injury and a primary psychological injury, which allows him to continue to receive weekly payments of compensation as provided for by section 39 of the 1987 Act (sections 39, 65 and 65A of the 1987 Act; section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 17 March 2022. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Stanton appeared for Mr Zhai, instructed by Ms Kha. Mr Doak appeared for the respondent, instructed by Mr Dolan.
It was agreed by counsel for both parties that as the dispute essentially involved legal issues that it would be preferable for the dispute to be determined with the assistance of written submissions. A timetable for written submissions was therefore made as follows:
(a)    the applicant to file and serve written submissions by 31 March 2022;
(b)    the respondent to file and serve written submissions in reply by 14 April 2022; and
(c)    the applicant to file and serve written submissions in response to the respondent’s submissions by 21 April 2022.
The parties agreed that 80% of the applicant’s pre-injury average weekly earnings for any award of weekly payments of compensation in favour of Mr Zhai would be $888.96.
In its written submissions, the respondent agreed with the particulars of Mr Zhai’s injuries set out in submissions filed on his behalf, being:
(a)    a fracture of the left second metacarpal which required internal fixation;
(b)    scarring on the left hand and lower arm;
(c)    a primary psychiatric in the form of:
(i)post traumatic stress disorder;
(ii)major depression; and
(iii)aggravation of schizophrenia, and
(d)    a secondary psychiatric injury in the form of alcohol use disorder.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s written submissions filed on 31 March 2022;
(d)    respondent’s written submissions filed on 14 April 2022; and
(e)    applicant’s written submissions in reply filed on 19 April 2022.

Relevant legislative provisions

Section 39 of the 1987 Act provides:

“CESSATION OF WEEKLY PAYMENTS AFTER 5 YEARS

(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note : For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”

Section 65 of the 1987 Act provides:

“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.”

Section 65A of the 1987 Act provides:

“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 322 of the 1998 Act relevantly 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.”

The applicant’s submissions

Mr Stanton on behalf of Mr Zhai submits that sub-sections (2) and (3) of section 322 of the 1998 Act provide that impairments, such as those resulting from primary psychiatric and physical injuries, “are to be assessed together”.
The Note in section 322 draws attention to section 65A of the 1987 Act, which provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairments arising from physical injury.
The relevant question is whether section 65A of the 1987 Act modifies section 322 of the 1998 Act.
Section 65A (4) of the 1987 Act commences by stating that a worker “is only entitled to receive compensation under this Division” (being Division 4 in Part 3 of the 1987 Act and which is headed “Compensation for Non-Economic Loss”) in respect of a primary psychological injury or a physical injury. Part 3 Division 4 of the 1987 Act has nothing to do with section 39 of the 1987 Act, which is included in Part 3 Division 2 of that Act. That Part is headed “Weekly compensation by way of income support”.
It is submitted that section 322 of the 1998 Act and sections 39 and 65A of the 1987 Act produce a situation where section 322 provides that “impairments” are to be “assessed together” to assess the degree of permanent impairment of the injured worker. When “assessed together”, the applicant’s singular degree of permanent impairment is 24%.
It is conceded that the applicant is limited to the payment of lump sum compensation for 20% permanent impairment for psychological injury because of the effect of section 65A (4). However, that requirement in section 65A does not mean section 322 (which provides for a singular impairment) ceases to have effect. Furthermore, section 322 prevails over any relevant provisions in the 1987 Act because section 2A of the 1987 Act provides that the 1998 Act prevails over the 1987 Act to the extent of any inconsistency between the two Acts.
Mr Stanton submits that section 65A of the 1987 Act and section 322 of the 1998 Act therefore sit quite harmoniously with each other, and that support for this submission can be found in what was said by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan) at 47:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
Mr Stanton submits that the use of the term “injury” in section 322 (2) and (3) of the 1998 Act is obviously a reference to an injurious event as opposed to a diagnosed condition, and clearly provides that impairments, such as those resulting from primary psychological and physical injuries are to be “assessed together.” That is, those two sub-sections of section 322 instruct that the impairments are to be combined.
Mr Stanton refers to the observation of DP Roche in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 at [26-27] that “the term injury can have two different meanings”, being a reference to pathological damage or an injurious incident, depending on the context in which the term is used. He submits that the better analysis of the use of the word “injury” in section 322 (2) is a reference to an injurious event.
Mr Stanton also refers to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), in particular the guidelines for the assessment of multiple impairments, and psychiatric and psychological injuries. Paragraph 1.17 of the Guidelines provides that impairments from the same injury should be assessed together, although it is acknowledged that paragraph 1.19 provides that “where applicable”, the “exception to this rule is in the case of psychiatric and psychological injuries” and that the “results of the two assessments cannot be combined together”.
It is submitted that the context of those particular guidelines means that the “exception” referred to in paragraph 1.19 is limited to the task referred to in the balance of paragraph 1.19, being the task required by section 65A (4) of the 1987 Act to calculate how much is to be paid to the worker pursuant to section 66 of the 1987 Act.
Both parties have addressed the decision of Arbitrator Wardell in Hulme v Secretary, Department of Education and Communities [2018] NSWWCC 35 (Hulme), and I will refer to Hulme in a separate part of this decision.

The respondent’s submissions

Mr Doak for the second respondent submits that upon a proper application of the plain words of section 39 of the 1987 Act (in particular sub-section (3)), any questions of inconsistency and apparent conflict between sections 65 and 65A of the 1987 Act and section 322 of the 1998 Act fall away.
Section 39 (3) states that “the degree of permanent impairment that results from an injury is to be assessed as provided for by section 65 (for an assessment for the purposes of Division 4”. Section 65 is a general gateway provision in Division 4 of Part 3 of the 1987 Act, and is prefaced by the words “For the purposes of this Division…”.
Mr Doak submits that the interpretation urged on behalf of Mr Zhai is not consistent with provisions of Division 4 when read as a whole. The purpose of Division 4 is the assessment of permanent impairment and the entitlement of a worker to non-economic loss commensurate with the worker’s level of impairment.
The distinction sought to be made by Mr Zhai between section 65A (which sets out how an entitlement to non-economic loss is to be arrived at when there are both physical and psychological injuries) and section 65, by reference to the words “entitled to receive compensation under this Division” in section 65A (4), is illusory because it is an attempt to view the different sections in Division 4 for separate purposes, whereas the purpose of Division 4 is uniform.
Mr Doak submits that if the legislature had intended to limit the application of Division 4 for the purposes of determining a worker’s entitlement to weekly benefits compensation after 260 weeks, then it could have done so by simply omitting the words in parentheses: “for an assessment for the purposes of Division 4”. Instead, sub-section 39(3) specifically invokes the purposes of Division 4.
Mr Doak states that these submissions are consistent with modern principles of statutory interpretation which includes that there be an analysis of the text of the legislation and not judicial elaborations of the statute (Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) CLR 1), that the overall objective of statutory construction is to give effect to the purpose of Parliament expressed in the text of the statutory provisions (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355), and that it is a mistake to consider statutory words in isolation (Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389).
Those principles allow only one interpretation of the application of section 39, namely that the whole of Division 4 is relevant to the process of determining a worker’s entitlement to weekly payments after 260 weeks, including the provisions of section 65A and the prohibition of relying on both a physical injury and psychological injury for the purposes of assessing permanent impairment to determine an entitlement to non-economic loss.
Mr Doak notes that section 322 (3) of the 1998 Act refers to “more than one injury arising out of the same incident”, but where, as in this dispute, it has been determined that the worker has sustained both a physical and a psychological injury arising out of the same incident, then the relevant provisions for assessment of impairment under Division 4 are section 65 of the 1987 Act and section 322 of the 1998 Act.

The decision of Hulme v Secretary, Department of Education and Communities [2018] NSWWCC 35 (Hulme)

The decision of Hulme is the only known decision of the Commission which involves the same issue which I am required to determine, namely whether a worker can combine assessments of permanent impairment for a physical injury and a primary psychological injury to be entitled to receive weekly payments of compensation beyond 260 weeks. Arbitrator Wardell found against the worker in that decision.
The worker in Hulme argued that multiple pathological injuries resulting from the same incident are to be treated as one injury and be assessed together, and that it is section 65A which is an exceptional provision, and that it does not apply to the application of section 39.
Arbitrator Wardell referred to the notes to section 65 of the 1987 Act and section 322 of the 1998 Act and considered [at 60] “that the notes do not, of themselves, purport to alter the substantive provisions to which they are appended”, but the notes “make clear the legislature’s intention that ss 65 and 322 (2) are to be read subject to, and together with,
s 65A”. Arbitrator Wardell referred to DC Pearce and RS Geddes, Statutory Interpretation in Australia (Butterworths, 8^th ed, 2014) and their comment [at 4.57] that the purpose of notes in legislation is often to “alert the reader to other relevant provisions of the Act”.
Arbitrator Wardell concluded [at 62]:
“Thus, the interpretation required in order to give the legislation as a whole a cohesive and harmonious operation is that ss65 and 65A are to be read together for all relevant purposes under the legislation.”
Arbitrator Wardell also noted that section 39 (3) expressly states that the assessment of permanent impairment for the purposes of section 39 is to be undertaken as if the assessment is “for the purposes of Division 4” and that this in turn means that section 65 as qualified by section 65A applies (at [63]).
Arbitrator Wardell noted [at 54] that both section 322 of the 1998 Act and the Guidelines apply for all “purposes of the Workers Compensation Acts” and therefore are not limited to claims for permanent impairment compensation, and that paragraphs 1.19 and 1.22 of the Guidelines expressly prohibit combining impairments resulting from physical and psychological injuries arising out of the same incident.
Understandably, the respondent supports the decision made in Hulme.
Mr Stanton submits that the reasoning of Arbitrator Wardell is flawed because there is no conflict between section 65 (2) and section 65A (4). The former is a general provision where more than one injury arising from the same incident is to be treated as “one injury”. The latter is a specific provision which just deals with what section 66 lump sum is payable where there is both a physical and primary psychological injury.
Mr Stanton also submits that Arbitrator Wardell has read section 322 (3) of the 1998 Act being subject to sections 65 (2) and 65A (4) of the 1987 Act, when section 322 prevails over those other sections due to section 2A of the 1987 Act.

REASONS

Mr Zhai has permanent impairment of his body and his mind as a result of the injury he sustained on 25 February 2006. A combination of those impairments amounts to a singular degree of permanent impairment of 24%.
On those simple details, Mr Zhai would be justified in claiming that he has passed the threshold required to continue to receive weekly payments of compensation beyond 260 weeks. There is no medical evidence which would challenge a finding that Mr Zhai has continued to have no current work capacity since weekly payments were terminated in September 2021.
However, “the degree of permanent impairment that results from an injury” which Mr Zhai has to establish is required by section 39 (3) of the 1987 Act “to be assessed as provided for by section 65 (for an assessment for the purposes of Division 4)”. This was acknowledged by Brereton JA in Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113 (Hochbaum), when his Honour said at [47]:
“…s 39 (3) points to the mechanism to be used when measuring the degree of permanent impairment resulting from an injury and, where necessary, resolving any dispute about it.”
Brereton JA also said at [53]:
“The relevant question is simply what degree of permanent impairment results from the injury, and the legislation provides a mechanism (assessment) for answering that question.”
Earlier in his decision, his Honour referred to Part 7 of Chapter 7 of the 1998 Act (headed Medical assessment) and said at [45]:
“By incorporating Pt 7, through s 65, the words “to be assessed” in s 39 (3) provide the methodology and process by which impairment is to be measured and any dispute about its existence or extent resolved.”
The Court of Appeal in Hochbaum was not required to determine the issue which arises in this dispute. It was not necessary for the Court of Appeal to explore any further the application of the ‘mechanism’ to measure the degree of permanent impairment which results from an injury.
In most claims there will be no difficulty in the applying the ‘mechanism’ to measure the degree of permanent impairment which results from an injury because there will only be a physical injury from an injurious event or only a psychological injury from an injurious event. However, the issue which confronts Mr Zhai is whether the ‘mechanism’ to be used to measure the degree of permanent impairment for the application of section 39 allows for him to combine from the same injurious event the impairment from his physical injury and the impairment from his psychological injury.
It is arguable that the reference in section 39 (3) only to section 65 means that the limiting effect of section 65A, so far as it applies to section 39, can be ignored. This was acknowledged in Hulme where Arbitrator Wardell said at [56]:
“There is no express reference to s 65A in s 39(3), s 65 or s 322 of the 1998 Act, which identifies the assessment methodology applicable under Part 7 of Chapter 7 of the 1998 Act expressly referred to in s 65(1). Indeed, the substantive provisions in s 65(2) and s 322(3), read on their own, are to the effect that multiple impairments arising out of the same incident are to be assessed together and combined for the purposes determining the overall degree of permanent impairment resulting from an ‘injury’.”
Such an argument ties in with the submission made by Mr Stanton that section 65A can be isolated to the payment of lump sum monetary compensation only, and impairments from a physical injury and psychological injury can otherwise be combined when other requirements in the workers compensation legislation arise, such as with section 39.
However, there are difficulties with this approach. Firstly, section 65 (1) provides that the degree of permanent impairment is to be assessed by this section and Part 7 of Chapter 7 of the 1998 Act. Section 65 includes a Note which follows section 65 (2). That Note states that section 322 of the 1998 Act requires the impairments from injuries arising out of the same incident to be assessed together, but then acknowledges the exception provided by section 65A that physical injuries and psychological injuries are not to be assessed together.
Mr Stanton refers to section 35 (2) of the Interpretation Act 1987, which states that a Note shall not be taken to be part of an Act or instrument. However, as Arbitrator Wardell pointed out in Hulme, the same Act allows that all material contained in the text of the Act can be used for “assisting in the ascertainment of the meaning of the provision” (section 34 (1)).
I agree with the conclusion reached in Hulme that the notes “make clear the legislature’s intention that ss 65 and 322 (2) are to be read subject to, and together with, s 65A”, and that this is supported by what is stated by DC Pearce and RS Geddes in Statutory Interpretation in Australia that the purpose of notes in legislation is often to “alert the reader to other relevant provisions of the Act”.
I agree with the conclusion then reached by Arbitrator Wardell at [61] that:
“Such an approach removes what would otherwise be a direct conflict between the substantive text of s 65(2) and s 65A(4) and enables the legislation to operate in a harmonious and cohesive matter consistent with its obvious purposes and objects.”
The inclusion of the Note alerts the reader to section 322 of the 1998 Act, which provides that all impairments from injuries out of the same incident are to be assessed, but also alerts the reader to the limitation imposed by section 65A of the 1987 Act where a worker has sustained both a physical injury and a psychological injury from the same injurious event.
I conclude that the reference in section 39 (3) to section 65, which includes the Note at the end of section 65, extends the limitation imposed by section 65A to a worker who seeks weekly payments of compensation beyond 260 weeks.
The second difficulty for Mr Zhai in regard to the interaction between section 39 (3) and section 65 is that section 39 (3) does not just refer to section 65, but also includes ‘for the assessment for the purposes of Division 4’. Division 4 includes reference to Part 7 of Chapter 7 of the 1998 Act, but also includes the limiting provisions of section 65A of the 1987 Act as it applies to a worker who has sustained both a physical injury and a psychological injury from the same injurious event.
Section 65 also commences with: “For the purposes of this Division…”, being similar wording to that used in section 39 (3).
Both section 39 (3) and section 65 must therefore adhere to the purposes of Division 4, and a purpose of Division 4 is to only allow a worker to recover lump sum compensation for a physical injury or a primary psychological injury, but not both. That reinforces my conclusion that Mr Zhai is not able to combine the assessments of his physical injury and primary psychological injury to reach the threshold required to continue to receive weekly payments of compensation.
Such a conclusion is consistent with the observation made by Arbitrator Wardell that the legislation is allowed “to operate in a harmonious and cohesive matter consistent with its obvious purposes and objects”. It also accords with the submission made by Mr Doak, and which I accept, that the distinction sought to be made by Mr Zhai between section 65A and section 65 cannot be maintained because it is an attempt to view the different sections in that same Division for separate purposes, whereas a purpose of Division 4 is to make uniform the application of a worker’s degree of permanent impairment within the workers compensation statutes.
There still remains section 322 of the 1998 Act and Mr Stanton submits that this section provides that “impairments” are to be “assessed together” to assess the degree of permanent impairment of the injured worker, which allows for a combination of impairments for both a physical injury and a psychological injury. Furthermore, section 322 prevails over any relevant provisions in the 1987 Act because of the effect of section 2A of the 1987 Act. He submits that this allows section 65A of the 1987 Act and section 322 of the 1998 Act to sit harmoniously together.
However, section 322 includes the Note after sub-section (3) which alerts the reader to section 65A and the separate assessments of impairment arising from a physical injury and impairment arising from a psychological injury. The wording in that Note is similar to that found in the Note in section 65.
There is no reason why the reasons that I have given in regard to the use of the Note in section 65 should not also apply to the Note in section 322. The Note directs or draws attention to section 65A and the need for section 322 (2) and (3) of the 1998 Act to be read subject to, and together with, section 65A.
It is also significant that section 39 (3) of the 1987 Act does not make direct reference to the medical assessment provisions of Part 7 of Chapter 7 of the 1998 Act, but rather proceeds by way of section 65 of the 1987 Act. This was observed by Brereton JA in Hochbaum when he said at [45] that the methodology and process by which impairment is to be measured and any dispute about its existence is to be resolved by incorporating Pt 7 through section 65. As I have already determined, the pathway for Mr Zhai through section 65 in his effort to satisfy section 39, will involve the application of section 65A, which means that he will not reach the necessary threshold to obtain weekly payments of compensation beyond 260 weeks.
Both parties referred to the Guidelines and their interpretation of what is set out in paragraphs 1.19 and 1.22 to bolster their respective positions, although Mr Doak observed that the Guidelines are subordinate legislation. Nonetheless, the Guidelines are a statutory instrument and I agree with Mr Stanton’s submission that those Guidelines need to be interpreted in a way that promotes the purpose of the underlying Act.
Mr Stanton submits that the “exception” to the rule regarding the combination of impairments referred to in paragraph 1.19 is limited to the task required in section 65A. I also note that it is arguable that the use of the term “where applicable” in that same paragraph might be an acknowledgement that not all situations governed by the legislation will prohibit the combination of impairments for physical and psychological injuries.
However, both paragraphs 1.19 and 1.22 of the Guidelines state that “the results of the two assessments cannot be combined”. There is no qualification or exception to that. What is stated in those paragraphs is consistent with the legislation which is intended to not allow the combination of impairments for a physical injury and a psychological injury from the one injurious event.
Both parties referred to the decision of Abu-Ali v Martin-Brower Australia Pty Limited [2017] NSWWCCPD 25 (Abu-Ali). DP Snell found in Abu-Ali that the worker could not combine assessments for permanent impairment for a physical injury and a secondary psychological injury to reach the threshold required to be a worker with highest needs (being part of section 32A of the 1987 Act).
Mr Stanton submits that Abu-Ali can be distinguished from this dispute because Abu-Ali involved a secondary psychological injury, and DP Snell considered the worker could not advance his claim that he was a worker with highest needs because [at 77]: “an assessment of permanent impairment in respect of the secondary psychological condition is precluded by s 65A of the 1987 Act”.
In reaching that conclusion, DP Snell said [at 72]:
“In my view the preferable construction, of the relevant definitions in s 32A, is that assessment “for the purposes of Division 4” involves assessment consistent with the process of assessment of permanent impairment for the recovery of compensation for non-economic loss. Such a construction is consistent with the text – the purposes of Div 4 are consistent with assessment for the recovery of non-economic loss compensation.”
Arbitrator Wardell in Hulme noted that the definitions in section 32A for a worker with high needs, and a worker with highest needs, include a requirement of a degree of permanent impairment that has been assessed “for the purposes of Division 4”, which is the same wording used in section 39 (3). He agreed with the reasoning of DP Snell in Abu-Ali and said [at 67]:
“Further, there does not appear to be any logical reason why a different approach to the assessment of permanent impairment for the purposes of s 39(3) should be adopted to that I am bound to accept is applicable for the purposes of the s 32A definitions. In other words, there is no reason why the issue of permanent impairment for the purposes of determining different aspects of the entitlement to weekly payments (and indeed s 60 expenses by reference to s 59A of the 1987 Act) should be assessed inconsistently. Indeed, consistency in this regard appears preferable, logical, fair and efficacious in the context of, and having regard to, the objects and purposes of the legislation as a whole.”
Although Abu-Ali does involve a different issue to that of Hulme and this dispute, the observations made by Arbitrator Wardell in light of the reasoning in Abu-Ali, add to the conclusion which I have also reached that the intention of the legislation is to provide consistency in the application of the degree of permanent impairment where a worker has impairments from both a physical injury and a psychological injury from the one injurious event.
I have provided my reasons as to why Mr Zhai cannot combine assessments of impairment from his physical injury and his primary psychological injury which result from the one injurious event on 25 February 2006. That means that he is not entitled to receive weekly payments of compensation from the respondent after he has been paid weekly payments for an aggregate period of 260 weeks.
There will be an award for the respondent in this application.

[2022] NSWPIC 202

6 May 2022