No Double Dipping

Purkiss v Secretary, Department of Education [2022] NSWPIC 269

The Claimant was employed by the Department of Education as a Head Teacher. On 15 November 2019, the Claimant was struck in the head with a soccer ball, suffering an accepted head injury and a secondary psychological condition. The Claimant was in receipt of weekly compensation for this injury.

The Claimant was able to return to work in early 2020. However, on 9 March 2021 she alleged that she suffered a primary psychological injury due to bullying and harassment. The insurer disputed that the Claimant had sustained a new and separate psychological injury.

Issues for determination

The issues in dispute were as follows:

• Whether the Claimant sustained a primary psychological injury due to bullying and harassment following her return to work from the 15 November 2019 injury; and if so,
• The extent of any incapacity resulting from a primary psychological injury.

Decision

In dealing with the first issue, Member Rachel Homan highlighted the distinction between a primary and secondary psychological injury as outlined in section 65A of the Workers Compensation Act 1987 (NSW) (the 1987 Act). This defines a secondary psychological injury as

“a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury” and a primary psychological injury to be one that is “not a secondary psychological injury”.

The Member accepted the Claimant’s detailed accounts of difficulties in returning to work, particularly interpersonal issues with the Principal. These issues included working extra hours and performing unsuitable duties. The Member had regard to the legal principles discussed by DP Roche in Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 and concluded that

“…if a worker on suitable duties, because of a work-related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment”.

Based on this, Member Homan was satisfied that the Claimant sustained a primary psychological injury due to the return to work process, which was distinct and separate to the physical injury of 15 November 2019. The Member also determined, based on the medical evidence, that the Claimant was totally incapacitated for work for the period claimed as a result of the primary psychological injury.

In determining the Claimant’s entitlement to weekly compensation, Member Homan discussed the implications of section 46 of the 1987 Act. This section confirms that the Commission may order that weekly compensation be reduced to prevent dual benefits of the same kind being payable during and in respect to a period of incapacity. The Member highlighted relevant case law pertaining to this issue and confirmed that, in order for the discretion in section 46 to apply, it is necessary that:

• the dual benefits are of the same kind;
• the benefits be payable by the employer;
• the benefits be payable during the incapacity for work; and
• the benefits be payable in respect of the incapacity for work.

Whilst the Member agreed that it is possible for a Claimant to have two separate incapacities, she also stated that it was possible for a Claimant to have one incapacity arising from two injuries. In respect of the present matter, Member Homan found that

“… the medical evidence before me suggests that both the 15 November 2019 injury and the primary psychological injury which is the subject of these proceedings have resulted in a total incapacity to engage in the Applicant’s pre-injury duties as a Head Teacher or any other suitable employment”.

Therefore, the Member exercised the discretion under section 46 of the 1987 Act to reduce the weekly compensation paid with respect the primary psychological injury by the amount of compensation already paid for the 15 November 2019 injury.

Implications

The decision in this case highlights that two separate injuries will not always result in two separate incapacities. It is critical to analyse what restrictions have resulted from a particular injury compared to another. It also confirms that an injury suffered while a worker is working suitable duties following a work-related injury, will not always be secondary to the initial injury. Careful consideration must be given to the facts and evidence in each matter.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.