Patterson v Secretary, Department of Planning, Industry and Environment (NSWPICPD 2022)

Link to Decision

Key Takeaways

This case demonstrates that determining the date of injury for disease claims is very complex. It depends on the medical evidence, the onset of symptoms, the type of compensation claimed and whether the worker has been employed by more than one employer.

Brief Facts

The worker worked as a cartographer for various NSW Government departments over a long period. On or about 1 April 2009 she lodged a claim for weekly payments and treatment expenses arising from the right shoulder and neck due to repetitive work. The claim was accepted and weekly payments made for a short period until the worker returned to normal duties. The worker continued to receive treatment for symptomatic relief.

On 6 August 2018, the worker lodged a further claim for weekly compensation due to a worsening of her condition. The insurer paid weekly compensation at a rate based on the 1 April 2009 date of injury.

The worker, on 10 August 2020, made a claim for lump sum compensation for 29% WPI. The insurer accepted the claim and paid it on the 1 April 2009 date of injury.

The worker commenced proceedings in the Personal Injury Commission (PIC) arguing that the claims made in 2018 and 2020 should have been calculated based on later dates of injury. The PIC Member decided that the claims for compensation should be calculated based on the 1 April 2009 date of injury. The worker appealed that decision to Deputy President Wood seeking to have the weekly payments determined based on the 6 August 2018 date of injury and the lump sum compensation determined based on the 10 August 2020 date of injury.

Decision

For disease cases, s15 and s16 of the Workers Compensation Act 1987 (the 1987 Act) determine the date of injury for the purposes of paying compensation. Generally speaking, the date of injury for weekly compensation is the date of incapacity and the date of injury for lump sum compensation is the date the lump sum compensation is made. So there can be different dates of injury depending on which type of compensation is being claimed.

The PIC Member found the worker suffered injury on and prior to 1 April 2009, ’which was further exacerbated…up to August 2018’. DP Wood indicated that the medical evidence supported a disease injury and therefore the PIC Member erred in not applying s15 or s16 when determining the date of injury. Furthermore, DP Wood found that the PIC Member erred in not identifying that under s15 and s16 there can be a different date of injury for weekly compensation and a different date of injury for lump sum compensation. This was made clear from the authorities of Alto Ford Pty Limited v Antaw (NSWCA 1999) and Stone v Stannard Brothers Launch Services Pty Ltd (NSWCA 2004).

Accordingly, DP Wood revoked the determination and remitted the matter to another Member for re-determination.

Implications

It is well established in case law that in disease claims there can be different dates of injury depending on which compensation is being claimed. The above case illustrates that, when dealing with different periods of incapacity and different claims of compensation for disease claims, a PIC Member must apply s15 or s16 of the 1987 Act to determine the date of injury. This is important as it will determine which employer/insurer is liable for the compensation.