Tagicaki v Everwilling Cranes Pty Limited (NSWPIC 2022)

Link to Decision

Key Takeaways

The Member found that s65A(4) of the Workers Compensation Act 1987 (‘the 1987 Act’) prohibits the aggregation of impairment of a primary psychological injury and a physical injury arising out of the same incident or injurious event.

Brief Facts

The applicant sustained an accepted psychological injury in the course of his employment on 13 September 2018. He subsequently sustained a consequential cardiovascular condition. Liability for the consequential condition was also accepted.

The applicant made a claim for lump sum compensation in relation to both injuries and proceedings were commenced in the Personal Injury Commission (‘PIC’). The PIC referred the applicant to two Medical Assessors: a psychiatrist and cardiologist. The applicant was assessed as follows:

• 24% WPI for his psychological/psychiatric disorder (Post-Traumatic Stress Disorder and a Persistent Depressive Disorder, together with Alcohol Use Disorder).
• 50% WPI of his cardiovascular system (alcoholic cardiomyopathy resulting in chronic heart failure).

The issue in dispute was the application of s65A(4) and whether the applicant could aggregate the psychiatric and cardiovascular impairments.

The matter came before Member Glenn Capel.

Judgment

The Member referred to s65A(4) of the 1987 Act. He noted it limits a worker to one payment of compensation in circumstances where the worker suffers a primary psychological injury and a physical injury arising out of the same incident or injurious event. He further noted both injuries are to be assessed separately.

Member Capel found in the current case that the medical evidence established only one incident or injurious event. The applicant’s psychological injury resulted from the incident on 13 September 2018. This incident set in train a series of events that resulted in the applicant developing physical pathology (alcoholic cardiomyopathy), and this pathology can be described as a secondary physical ‘condition’.

Although the applicant’s secondary physical ‘condition’ is not defined in the Act, the common law has well recognised that an injury can set in train a series of events, which may subsequently give rise to a secondary condition.¹ The Member found that the psychological injury sustained on 13 September 2018 caused the alcoholic cardiomyopathy. That pathology resulted from the same injurious event. According to Edmed,² the impairments should be aggregated, but this was prohibited by s65(4) of the 1987 Act.

Member Capel found that since the impairments result from the one incident the applicant is not entitled to aggregate the assessments of his primary psychological injury and his secondary physical condition. He is limited to the more beneficial monetary amount in line with s65A(4) of the 1987 Act. This was based on three reasons:

• s65A(5) clearly delineates between a primary psychological injury and a secondary psychological injury but Parliament has chosen to refrain from including a definition of a ‘secondary condition’;
• the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment do not include the term ‘secondary condition’, they do not suggest that aggregation can occur when impairments arise from the same injurious event;
• there is no provision similar to s65A(4) of the 1987 Act that prevents a worker from receiving compensation for a secondary physical condition that results from the primary physical injury. The fact that Parliament enacted s65A(4) of the Act suggests that it was intended that workers 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.

Implications

It is well established that a ‘secondary condition’ can flow from an accepted injury as defined by s4 of the 1987 Act. This case illustrates the need for insurers to closely scrutinise the specific particulars of claims. The characterisation of injuries as primary or secondary can have a significant impact on the overall claim when assessing lump sum compensation.