Bec & Bridge (Retail) Pty Ltd v Curr [2026] NSWPICMP 129

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Key takeaways

• There should be a close examination of a worker’s pre-injury psychological history when assessing permanent impairment.
• Evidence of prior trauma or psychological conditions may support a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998, even in the absence of documented functional impairment.

Brief facts

The worker was employed as a sales assistant. She experienced a number of workplace incidents, following which she developed a psychiatric injury and ceased work in June 2019.

Liability for the injury was accepted by the insurer. Of relevance, the worker had a documented history of psychological trauma, including an assault during her employment with a different employer.

The worker made a claim for 23% whole person impairment (WPI) based on an assessment of Dr Glen Smith, who applied a one-tenth deduction under s 323, having regard to the worker’s prior psychological history.

The WPI claim was disputed by the insurer and the worker commenced proceedings in the Personal Injury Commission (PIC) seeking a referral to a Medical Assessor (MA).

The matter was referred to Dr Ankur Gupta, MA. Dr Gupta assessed 15% WPI, however, declined to apply a deduction under s 323, on the basis that there was ‘no evidence of any functional impairment predating the current injury’.

The appeal focused on whether the MA erred by failing to properly apply the s 323 deduction, and, in particular, whether the absence of prior functional impairment justified no deduction being applied.

Decision

On appeal, the Medical Appeal Panel (MAP) found that the MA had made a demonstrable error by failing to apply a deduction under s 323, in light of the significant evidence of prior psychological issues suffered by the worker before the relevant work injury.

The MAP referred to the decision in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365, which confirmed that the application of a deduction under s 323 involves the following three steps:

1. Firstly, determining the extent of the resulting impairment.
2. Secondly, determining whether the pre-existing condition contributed to the impairment.
3. Thirdly, if it did, determining what proportion of the impairment was due to the pre-existing condition.

The MAP found that the MA misapplied s 323 and erred on the second step, by focusing on the absence of prior functional impairment, rather than whether the pre-existing condition contributed to the current impairment.

The MAP determined that a pre-existing condition may contribute to impairment even where the worker was asymptomatic at the time of a subsequent injury.

The MAP confirmed that the correct inquiry for assessors is whether the impairment would have been less, but for the pre-existing condition.

The MAP ultimately determined that a one-tenth deduction was appropriate under s 323(2) and clause 11.10 of the Guidelines, reducing the assessment from 15% to 14% WPI. As a result, the worker was disentitled to lump sum compensation and unable to pursue a work injury damaged claim.

Implications

This decision confirms that, where a pre-existing condition exists, the critical question for assessors is whether that condition contributes to the impairment, rather than whether it caused prior functional limitations.

Importantly, a deduction may be warranted even where the pre-existing condition was asymptomatic at the time of injury. A correct consideration of s 323 may therefore have a significant impact on entitlement, as demonstrated in this matter, where the worker ultimately did not succeed in establishing entitlement to permanent impairment compensation.