Brown v Harris Farm Markets Orange Pty Ltd (NSWPIC 2022)

Link to Decision

Key Takeaways

Where evidence from a worker appears contradictory or unreliable, a consequential injury may not be established in the absence of sufficient contemporaneous medical evidence.

Brief Facts

The worker sustained an injury to his left foot in the course of his employment with the respondent on 12 January 2016, which resulted in amputation of his left little toe. Liability was accepted.

On 12 January 2021, the worker made a claim for permanent impairment compensation in respect of an alleged psychological injury with the same date of injury. That claim was disputed on the basis that the psychological injury was not a primary psychological injury but a secondary psychological injury and as such, was not open to a WPI assessment under s65A of the Workers Compensation Act 1987 (the 1987 Act).

The worker thereafter made a claim for permanent impairment compensation in respect of 17% WPI for injury to the left lower extremity and lumbar spine on 12 January 2016 as well as scarring. The worker pleaded a consequential injury to the lumbar spine due to an altered gait resulting from his accepted left foot injury.

The matter was ultimately heard by Member Kerry Haddock. The issues for determination were:

• whether the worker had sustained a consequential condition of his lumbar spine as a result of injury to his left ankle on 12 January 2016, and
• whether the worker had sustained a primary psychiatric/psychological condition.

Judgment

Claim for consequential lumbar spine condition

Member Haddock affirmed that in proving that he had sustained a consequential lumbar spine condition the worker did not need to establish that he had sustained an injury arising out of or in the course of employment (s4 of the 1987 Act) or that the employment was a substantial contributing factor (s9 of the 1987 Act).

Instead, ‘he need only establish on the balance of probabilities that the condition of his lumbar spine resulted from the injury to his left foot’. Member Haddock found that a ‘common sense evaluation of the causal chain’ was required. In applying the common sense test, the question of whether the disputed impairment ‘resulted from’ the work injury had to be considered, which involved the Member making a finding of fact.

Ultimately, Member Haddock was not satisfied that the worker had sustained a consequential condition to his lumbar spine as a result of the injury to his left foot. This was largely due to a lack of medical evidence to support that contention and a finding that the worker’s evidence was unreliable and contradictory.

Claim for primary psychological injury

Member Haddock determined that the worker did suffer a primary psychological injury.

This finding was largely the result of the medical evidence from the worker’s treating psychiatrist who considered that a primary psychiatric condition had been sustained by the worker as a result of having his foot crushed by a pallet jack.

Implications

This case emphasises that while there is a relatively low bar to establishing a consequential condition, (needing only to prove that there was a condition and it resulted from the accepted injury) evidence as to the causal link between the two is required to surmount a consequential condition claim.

Specific attention should be paid as to whether the evidence lends itself to establishing that the alleged consequential condition resulted from the accepted injury. If not, a dispute may be applicable.  

Furthermore, when obtaining medical evidence for the purposes of a consequential injury claim, care should be taken to ensure that the doctor is being clearly asked whether an injury is a fresh injury that occurred separately to any other accepted injury or whether an injury resulted from an accepted injury. Contemporaneous medical records should always be sought when considering a consequential injury as these may ultimately determine if a consequential injury claim is successful.

Expert medical evidence is also of paramount importance in considerations of whether a psychiatric injury is a primary or secondary psychiatric injury.