The Importance of being ‘Mineful’ when Attempting to Aggregate Injuries

Bell v The Mining Pty Ltd [2023] NSWPIC 295 (21 June 2023)

The Applicant, Bradley Bell, sustained a primary psychological injury during the course of his employment with the Respondent, The Mining Pty Ltd, on 3 July 2021 when he discovered the body of a deceased co-worker.

Following the incident on 3 July 2021, the Applicant developed a consequential endocrinological condition due to significant weight gain as a result of the primary psychological injury. Liability for the primary psychological injury and the consequential endocrinological condition was accepted.

On 18 July 2022, the Applicant’s solicitors provided notice of a claim for lump sum compensation in respect of 19% WPI pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’). Reliance was placed on the medical assessment of Dr Abdal Khan, Psychiatrist.

The Applicant’s solicitors amended the claim to seek lump sum compensation in respect of 23% WPI on 20 December 2022, aggregating an assessment of 5% WPI of the endocrine system by Dr Stephen Thornley and the assessment of 19% WPI by Dr Khan. A dispute notice was issued on 16 March 2023 and proceedings were commenced in the Personal Injury Commission on 18 April 2023.

Issues for Determination

It was agreed by the parties that the following issues remained in dispute:

(a) whether, pursuant to s 65A(4) of the 1987 Act, permanent impairment resulting from the primary psychological injury can be aggregated with any permanent impairment resulting from the consequential physical condition, and

(b) whether the consequential physical condition is capable of referral to a Medical Assessor.

Relevant Legislation

65A Special provisions for psychological and psychiatric injury

…

(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.

Discussion

The Applicant submitted that section 65A(4) of the 1987 Act did not apply in the present case because in the circumstances, the only ‘injury’ occurring on 3 July 2021 was a primary psychological injury in the nature of Post-Traumatic Stress Disorder.

On the other hand, the Respondent argued that the term “physical injury” in the context of section 65A(4) of the 1987 Act should be understood as encompassing a consequential or secondary physical condition.

Member Homan considered there was force in the Respondent’s submissions and stated:

The reference to injuries “arising out of the same incident” connotes a causal relationship to the injurious incident but does not require that the injuries occurred temporally in the incident itself.

The Member determined that section 65A(4) of the 1987 Act applies to a consequential or secondary physical condition or “injury” and therefore, in this case, encompassed the Applicant’s endocrinological condition.

It was therefore held that the degree of permanent impairment that results from the primary psychological injury was to be assessed separately from the degree of permanent impairment that results from the endocrinological condition.

Given there was no evidence relied upon by either party that the degree of permanent impairment of the consequential endocrinological condition exceeded 10% WPI, Member Homan stated there was no basis to refer the condition to a Medical Assessor.

Implication

This decision is an important reminder that there is no distinction between a primary physical injury and a secondary or consequential physical injury for the purposes of section 65A(4) of the 1987 Act. As demonstrated in this instance, careful consideration must be provided to the operation of section 65A(4) as it may limit the injuries referred to a Medical Assessor.