Elkhaligi v Lifestyle Solutions & Life Without Barriers [2020] NSWWCC 109 (7 April 2020)

Summary

The applicant worker suffered psychological/psychiatric injury on 30 July 2012 while in the employ of a disability care provision agency, Lifestyle Solutions, before leaving that role and commencing employment with another disability service agency, Life Without Barriers. Additional incidents in July 2014, August 2014 and March/April 2015 while she was working for Life Without Barriers caused a further decline in her condition.

On 4 February 2019, the applicant gave notice of a claim for lump sum compensation against both employers in respect of 23% WPI relating to psychological injury.

The matter was litigated against both employers in the Workers Compensation Commission and Arbitrator Sweeney confirmed that the separate injurious events, occurring under separate employ, could be aggregated for the purpose of a single lump sum compensation claim.

Submissions

Liability for psychological injury was accepted by the respondents. As such, it was accepted that the matter should be referred to an AMS to determine impairment. However, the parties were unable to agree at the initial teleconference whether the impairment should be aggregated.

The applicant submitted that the multiple incidents should constitute a single injury, pursuant to the line of authority in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 and section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the ‘1998 Act’). The respondents submitted that the facts of this matter were distinct from Barnes, as Barnes concerned only a single employer and the two injurious events had occurred within a shorter time frame. The Arbitrator considered it appropriate to refer the matter to an AMS for an assessment of impairment prior to a finding on the aggregation issue.

By way of Medical Assessment Certificate dated 31 January 2020, AMS Dr Parmegiani diagnosed the applicant with chronic PTSD and certified that the applicant’s WPI was 22%. He separately assessed the 2012 injury as giving rise to WPI of 3%, stating:

Ms Elkhaligi had a pre-existing impairment of 3%, arising from the injury of 30 July 2012. Impairment attributable to her employment with life without barriers is therefore 22% minus 3% =19%

Following receipt of the Medical Assessment Certificate, the respondents submitted that the AMS had indicated that the injuries should not be aggregated and that this finding should be presumed correct under section 326 of the 1998 Act. The applicant re-affirmed their previous submissions.

Case law and legislation

Section 322(2) of the 1998 Act provides that impairments that result from the same injury are to be assessed together to calculate the degree of permanent impairment of the injured worker. Section 322(3) provides that impairments arising from multiple injuries attributable to one incident should also be assessed together.

For the proper interpretation of section 322(2), Arbitrator Sweeney referred to the decision of Deputy President Roche in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, citing the following passage from DP Roche’s reasons:

The reference to ‘the same injury’ in section 322 (2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322 (3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322 (2). If ‘injury’ in section 322 (2) means ‘pathology’ then, for section 322 (2) to be consistent with section 322 (3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.

Arbitrator Sweeney also referred to the authority in Barnes, within which DP Roche confirmed that a lump sum compensation claim can be made in respect of a single aggregated impairment arising from separate injurious events consistent with section 66 of the Workers Compensation Act 1987.

Decision

On the authorities presented in Edmed and Barnes, Arbitrator Sweeney confirmed that the foremost consideration in deciding whether separate injurious events, occurring under separate employ, can be aggregated is whether the resulting impairment arises from the same pathology. On the whole of the evidence, the Arbitrator was satisfied that a singular pathology was indicated, stating:

In my opinion, the evidence establishes that the applicant suffered from the same “pathology” as a result of the incidents in the employment of both respondents. It is true that her condition has waxed and waned over the years, gradually improving after the 2012 injury and significantly worsening during her employment with the second respondent. Nonetheless, the medical evidence overwhelmingly leads to a conclusion that she has always suffered from post-traumatic stress disorder with varying levels of depression.

Arbitrator Sweeney accepted the respondent’s submission that the AMS finding of pre existing injury should ordinarily be binding on the Commission. However, the Arbitrator held that the MAC also indicated a total WPI of 22% and, given that the case law indicates that aggregation is entirely a matter for the Commission, it is open to the Commission to adopt the 22% overall figure as attributable to both respondents.

An award was made for the full amount against the second respondent with liberty to apply to the Commission with respect to apportionment of compensation between the first and second respondents.

Implications

Separate injurious events and contributions to connected pathologies can raise complex and unique challenges in the workers compensation space. When dealing with conditions as pervasive and cumulative as PTSD and other stress-based mental disorders, employers and insurers need to be aware both of their liability for current impairment and the potential effect of future progressive injurious events.