Ausgrid Management Pty Ltd v Fisk (NSWPICMP 2023)

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Key Takeaways

Section 65A(2) of the Workers Compensation Act 1987 (the 1987 Act) provides that, in assessing the degree of permanent impairment that results from a primary psychological injury (or from a physical injury), no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

An Appeal Panel (AP) has accepted that an injured worker has suffered impairment due to a secondary psychological injury but determined that a deduction from the assessment of permanent impairment caused by a primary psychological injury does not apply when symptoms and impairment from both the primary and secondary psychological injuries are intermingled.

Brief Facts

In 2020 proceedings brought in the former WCC (now PIC), the respondent worker (the respondent) was found to have sustained an injury to his cervical spine arising out of or in the course of his employment on 27 January 2016 (deemed). The respondent was also found to have developed a secondary psychological condition as a result of that spinal injury.

In May 2021, the respondent made a claim under s66 of the 1987 Act for 19% WPI due to a primary psychiatric injury. The appellant employer (the appellant), issued a notice under s78 of the Workplace Injury Management and Workers Compensation Act 1998 declining the claim. The respondent subsequently sought a review following which the appellant confirmed its previous decision.

The respondent commenced proceedings and the PIC made a determination in the respondent’s favour, finding that he had sustained a primary psychological injury arising out of or in the course of his employment. The psychological injury was also deemed to have occurred on 27 January 2016.

The respondent was referred to a Medical Assessor (MA) for assessment of the degree of permanent impairment from the primary psychological injury. The MA issued a Medical Assessment Certificate (MAC) certifying that the respondent had 22% WPI due to the primary psychological injury.

The appellant appealed the MAC on the grounds that the MA erred by not deducting the respondent’s permanent impairment from a secondary psychological injury from the permanent impairment he assessed. The appellant submitted that the required test, as set out in Mercy Connect Ltd v Kiely (NSWSC 2018) (Kiely no 2), had not been applied. That test instructs a MA to calculate firstly the entire degree of impairment from a psychological injury in accordance with the Psychiatric Impairment Rating Scale (PIRS) categories of the SIRA guidelines and then to assess the impairment from a secondary psychological injury and deduct the latter from the former.

Judgment

The AP accepted that the MA did not give consideration to the evidence relating to the respondent’s cervical spine injury and how the consequences of that injury had affected the respondent’s psychological functioning. However, in considering s65A(2), the AP found that the two-step process in Kiely no 2 could not be applied on the basis that the respondent’s symptoms and impairments of function from both his primary psychological injury and secondary psychological injury were ‘completely intermingled’ and ‘indivisible’.

The AP determined that the requirement of s65A(2) is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury and that the sub-section cannot be interpreted to disregard impairment and symptoms that result from a primary psychological injury, even though they may also result from a secondary psychological injury.

Implications

The decision suggests that unless impairment of function can be distinguished between primary and secondary psychological injuries, a deduction for the secondary psychological injury is unlikely to be made. When instructing psychiatrist medical examiners, it may be helpful to ask for impairment of function from a secondary psychological injury to be assessed under the PIRS in a separate table from the table assessing impairment due to the primary psychological injury.