Zdanovits v Officemax Australia Limited (NSWPIC 2021)

LINK TO DECISION

Key Takeaways

In this matter the PIC Member discusses aggregation of WPI in the context of the Workers Compensation Commission (WCC) Presidential decision of Department of Juvenile Justice v Edmed (NSWWCCPD 2008) (Edmed) and the recent NSWCA decision in Ozcan v Macarthur Disability Services Ltd (NSWCA 2021) (Ozcan).

Brief Facts

The worker suffered a psychological injury on 11 August 2017 due to an assault at work by a colleague and suffered another psychological injury due to the nature and conditions of work with a deemed date of injury of 21 December 2017. The worker alleged whole person impairment (WPI) for the injuries and claimed lump sum compensation pursuant to s66 of the Workers Compensation Act 1987 (the 1987 Act).

The matter, which was filed in the Personal Injury Commission of NSW (PIC), was referred to an Approved Medical Specialist (AMS) who found the worker suffered from a 20% WPI impairment. The AMS attributed 6% WPI to the assault and 14%WPI to the nature and conditions of work.

The issue before the Member was whether the worker could aggregate the WPI percentages or whether there be an award for the respondent employer because neither percentage satisfied the WPI threshold for psychological injuries under s65A of the 1987 Act.

Decision

The PIC Member referred to Edmed and Ozcan. He noted Edmed was authority for the aggregation of WPI when the incidents result from identical pathology. He also noted that in Ozcan, the NSWCA found that if the first incident materially contributed to the second incident, the impairments arose out of the first incident.

The Member concluded that the impairments from the two dates of injury could be aggregated based on the Edmed authority because ‘the findings of pathology referable to each of them are identical psychological injuries’. However, he then found that even if the principles of Edmed were not applied, the principles of Ozcan would apply as the Member found that the first injury contributed to the second injury.

The Member did not specifically indicate upon which of the two injury dates the WPI would be paid.

Implications

This matter is one of the first decisions by the PIC since Ozcan was handed down by the NSWCA.

It is arguable that if there is evidence that the first incident materially contributed to subsequent incidents, Ozcan should be applied as it is a decision from a higher court, which noted that the WCC Presidential decision of Edmed did not deal with the principle of ‘material contribution’. Such an approach may affect the quantum of the claim because based on Ozcan, the lump sum compensation under s66 of the 1987 Act would be calculated on the first date of injury, while, based on Edmed, the lump sum would be calculated on the second injury.