Pohutuhutu v Cobar Shire Council & Anor [2026] NSWPIC 205

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Key takeaways

This decision concerns a lump sum claim for psychological injury, in circumstances where the injury was undisputed by the first respondent, who sought to attribute liability to the second respondent by operation of the disease provisions of the Workers Compensation Act 1987 (1987 Act).

Member Peacock held that, when all the evidence was considered, the highest that could be said was that the worker’s psychological injury was aggravated in the employment of the second respondent, but that the contribution of that employment to the aggravation was a minor one. A minor contributor to an aggravation cannot be a "substantial contributing factor" to an aggravation, and it certainly cannot be the major contributing factor to an aggravation. Accordingly an award was made in favour of the second respondent.

Brief facts

The worker sought compensation for a psychological injury. The first respondent was Cobar Shire Council. The second respondent was Curtain Raiser Pty Limited ATF Curtain Raiser Trust t/as Copper City Motel.

It was not in dispute that the worker suffered a psychological injury in the course of, or arising out of, her employment with the first respondent as an Assistant in Nursing on 12 February 2021. The first respondent ceased paying weekly benefits on 6 May 2021, following a work capacity decision.

The worker then commenced casual employment as a cleaner with the second respondent on 29 May 2021. She worked up to 12 hours per week over approximately 10 months before ceasing work on or about 17 April 2022.

On Easter Monday 2022, a new temporary manager telephoned the worker and demanded she return to work immediately. The worker decided she could not return to a workplace with such a management style and has not worked since.

The worker made a claim for weekly benefits, medical expenses and lump sum compensation. The first respondent denied that it was liable to pay compensation, contending that liability fell to the second respondent by operation of the disease provisions.

The second respondent denied liability.

Judgment

Applicable law

Under s4 1987 Act, a "disease injury" includes:

• a disease contracted in the course of employment where employment was the main contributing factor, or
• the aggravation, acceleration, exacerbation or deterioration of any disease in the course of employment, where employment was the main contributing factor to that aggravation.

Section 16 of the 1987 Act provides that compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation but only once injury under s 4 is first established.

Medical evidence

Three IME opinions were before the Commission:

• Dr Whetton (worker’s psychiatrist) - employment with the first respondent as an Assistant in Nursing was the main contributing factor. Employment with the second respondent as a cleaner did not aggravate the worker’s condition or change her diagnosis in any way.
• Dr Chew (second respondent's psychiatrist) - initially considered the worker’s employment as a cleaner was a minor contributor to an aggravation, but later revised his view and found no aggravation at all due to that employment.
• Dr Bertucen (first respondent's psychiatrist) - after five reports and three examinations, agreed with Dr Chew's initial position: employment with the first respondent was the main contributing factor, and the employment as a cleaner was only a minor contributor to an aggravation. This did not support the first respondent's own case.

Member Peacock's reasoning

The first respondent argued that the reduction in the worker’s capacity for work from 12 hours per week to nil was a matter of fact that was determinative of injury having been sustained with the second respondent.

Member Peacock rejected this, noting whilst incapacity was a relevant consideration, it was not determinative of injury. There must have been an aggravation of the disease to which employment was the main contributing factor. Only upon a finding injury would s16 be engaged to deem a date of injury and attribute liability to pay compensation.

A minor contributing factor to an aggravation cannot be a substantial contributing factor, and it certainly cannot be the major contributing factor, to that aggravation.

Doctors Chew and Bertucen did not say employment with the second respondent was a minor contributor to the disease. They were expressly stating that employment with the second respondent was a minor contributing factor to an aggravation of the disease.

Outcome

Weighing all the evidence, Member Peacock found that the highest available finding was that the worker’s psychological injury was aggravated in her employment with the second respondent. However, the contribution of that employment to the aggravation was minor. This fell below both the "substantial contributing factor" threshold under s 9A and the "main contributing factor" threshold under s 4(b)(ii). There was accordingly no compensable injury when she was employed as a cleaner, resulting in an award in favour of the second respondent.

Implications

1. Disease provisions require more than a minor contributing factor. A minor contributor to an aggravation cannot be a substantial contributing factor, and cannot be the major contributing factor, to that aggravation. Insurers seeking to attribute liability to a subsequent employer under s 4(b)(ii) and s 16 must demonstrate that employment was the main contributing factor to the aggravation, a high threshold that is not discharged merely because an aggravation may have occurred.
2. Injury is a precondition to engaging s 16. Section 16 cannot be brought into play unless the PIC first finds a compensable injury under s 4. The deeming and liability-attribution machinery of s 16 is only triggered once that primary finding is made.
3. Incapacity alone does not establish aggravation injury. The fact that a worker exercises partial work capacity with a second employer, then becomes totally incapacitated, does not automatically establish a compensable aggravation injury in that second employer's employment. All evidence, including expert medical evidence, must be weighed in the balance. Insurers should not assume that a chronological reduction in capacity is determinative of the question.