Something doesn’t add up – Aggregation of assessments in the PIC
Tagicaki v Everwilling Cranes Pty Limited [2022] NSWPIC 203
Background
The Claimant commenced his employment with Everwilling Cranes on 14 January 2004 as a dogman/crane chaser. He suffered an accepted psychological injury on 13 September 2018 when a concrete panel snapped, pinning him against a crane. On 23 June 2020, the Claimant served a notice of claim for lump sum compensation for the psychological injury as well as a consequential alcoholic cardiovascular injury.
The matter was then referred to two separate Medical Assessors with respect to the psychological and cardiovascular injuries. The referral to the Medical Assessors specifically stated that the assessments were not to be consolidated. The Claimant was assessed with a 24% WPI for the psychological injury and 50% WPI for the cardiovascular injury.
Following the Medical Assessment Certificates (MAC) being issued to the parties, the Claimant requested that the issuing of the Certificate of Capacity (COD) be deferred, as they sought to have the assessments combined.
Issues for determination
The parties agreed that the issue in dispute was whether the permanent impairment assessments resulting from the incident on 13 September 2018 could be aggregated.
Legislation
Section 65 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) provides that :
- 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.
- If a Claimant 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.
Section 65A of the 1987 Act further provides that:
- No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
…
4. If a Claimant receives a primary psychological injury and a physical injury, arising out of the same incident, the Claimant is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries…
Decision
The Claimant’s submission was essentially that the alcoholic cardiomyopathy was a secondary condition, not an injury. Therefore, the Claimant had only suffered one psychological ‘injury’ and his cardiac condition was consequential. In this way, the Claimant submitted that the claim for aggregation would not be defeated by section 65A of the 1987 Act. The Claimant relied on the casual connection between employment, the psychological injury and the consequential cardiac condition.
Member Capel accepted that the term ‘injury’ can have two different meanings pursuant to Section 322(3) of the Workplace Injury Management and Workers Compensation Act 1998, which refers to impairments that result from more than one injury arising out of the same incident. The Member referred to Deputy President Roche’s decision in Department of Juvenile Justice v Edmed [2008) NSWWCCPD 6 (Edmed). The Member also agreed that there is no dispute that a Claimant does not need to establish that they suffered an injury for the purposes of a consequential condition, the existence of symptoms can be enough.
The Member highlighted that there is nothing ambiguous about the terms of section 65 of the 1987 Act. However, the section does not use the term ‘consequential condition’ or ‘secondary condition’ nor do those terms appear in any Workers compensation legislation. The Member commented that
“One must interpret the ordinary and grammatical meaning of the text, the language and structure of the legislation, the legal and historical context, and the purpose of the statute in order to come to a reasonable conclusion as to its meaning and application.”
In the Claimant’s case, the Member held that there had been only one injurious event on 13 September 2018. The Member also found that the Claimant sustained a primary psychological injury as a result of this incident which also caused the alcoholic cardiomyopathy. Member Capel accepted that the pathology resulted from the same injurious event and noted that, according to Edmed, they should be aggregated.
However, Member Capel ultimately found that the Claimant’s request for aggregation was prohibited by section 65(4) of the 1987 Act. The Member stated that
“There is no provision similar to s 65A(4) of the 1987 Act that prevents a Claimant from receiving compensation for a secondary physical condition that results from the primary physical injury. The fact that s 65A(4) of the Act was enacted suggests that it was intended that Claimants had a choice to elect between the compensation payable in respect of physical and psychological pathology arising from the one injurious event, whichever was more financially beneficial.”
If it was intended, as the Claimant submits, that he could receive compensation for the primary psychological injury and the secondary physical condition resulting from the same event then there would have been a legislative definition of ‘secondary condition’ and a provision to that effect.
Member Capel determined that the Claimant was not entitled to aggregate the assessments for the psychological injury and the cardiovascular condition. The Member made orders for compensation in accordance with the MACs.
Implications
The decision of Member Capel highlights that, even if a primary psychological injury and secondary physical condition result from the same injurious event, section 65A(4) will nevertheless prevent an aggregation of those impairment assessments.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
