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Matheson v Baptistcare NSW & ACT (NSWSC 2025)

Key Takeaways

In this decision, it was held that the deduction for pre-existing asymptomatic psychiatric injuries/conditions is to be calculated by reference to a person’s pre-injury functioning.

Often times, if not in all cases, there may be no pre-injury impairments to daily functioning caused by an asymptomatic pre-existing psychiatric injury/condition, meaning the deduction for pre-existing impairment would be nil.

Brief Facts

The worker sustained a psychiatric injury in the course of her employment. The worker made a claim for lump sum compensation, and this proceeded to an examination by a Medical Assessor. The Medical Assessment Certificate was appealed and an Appeal Panel (AP) issued a decision in which they assessed the worker with 17% WPI and made deductions of 1.5% for a pre-existing condition, and 2.5% for a ‘secondary psychological injury’. The result being that the worker fell under the 15% WPI threshold for an entitlement to lump sum compensation and to pursue a work injury damages claim.

The worker filed a summons in the Supreme Court of NSW seeking judicial review of the AP’s decision.

In relation to the deduction for pre-existing impairment, the worker submitted that the deduction had to be assessed in accordance with the PIRS categories contained in the SIRA Guidelines. Specifically, clause 11.10, which states that the assessor is to use the PIRS categories to determine a person’s pre-injury psychiatric functioning, which will convert to a pre-existing WPI percentage to be deducted from the WPI assessed following the current assessment. With the pre-existing condition being asymptomatic, the worker submitted that the deduction had to be nil.

Decision

Basten AJ referred to a decision of Simpson AJ in Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks). In that case, it was held that to the extent that clause 11.10 of the SIRA Guidelines precluded the assessment of impairment from a previous injury which was asymptomatic, it was inconsistent with the causative element of s323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and was therefore invalid.

In the present case, Basten AJ accepted the finding in Marks, that there was nothing in the legislative provisions that authorised the issue of guidelines inconsistent with any provision in the 1998 Act. However, Basten AJ set out the statutory scheme, in particular, ss.322(1) and 323(4) of the 1998 Act, the first of which gives rise generally to the operation of the SIRA Guidelines while the second authorises them to make provisions for the determination of a deduction for pre-existing impairment.

His Honour went on to note that a precondition in s323(1) of the 1998 Act for a deduction for pre-existing impairment was that there had to be a causal connection between the previous injury/pre-existing condition and the existing state of impairment. He considered that there was no limitation in the legislation that prevented the SIRA Guidelines from qualifying the substantive effect of s323(1). Accordingly, his Honour held, contrary to Marks, that a guideline which states that an asymptomatic psychological condition cannot satisfy the precondition in s323(1) is not inconsistent with the operation of that provision.

Implications

This decision creates some tension with the earlier Marks decision as in the current case it was held, contrary to Marks, that the deduction for pre-existing asymptomatic psychiatric injuries/conditions is to be calculated by reference to a person’s pre-injury functioning.

This would appear to preclude a deduction for pre-existing impairment being made in situations where a pre-existing psychological injury/condition is asymptomatic.