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A Fork in the Road: The Impact of Secondary Psychological Injuries on Whole Person Impairment

Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta [2023] NSWPICMP 214

Appellant: Arthur Tzaneros Discretionary Trust & Luke Webber Trust

Respondent: Saofaileta

BACKGROUND:

On 11 March 2019 the worker was knocked to the ground by a forklift truck at their workplace. As a result of the incident, the worker suffered both physical and psychological injuries.

The Medical Assessor assessed the worker’s impairment and diagnosed the worker with a primary and secondary psychological injury:

  • Primary: Persistent depressive disorder and post-traumatic stress disorder.
  • Secondary: Alcohol use disorder, which was secondary to the physical injury.

Strangely, the existence of whether there was a primary and/or secondary psychological injury, and what they were, was not determined by the commission prior to the referral.

ISSUE:

The Appellant argued that there was a demonstrable error in the MAC, as the MA when assessing the impairment arising from the primary psychological injury, had failed to exclude the Impairment Resulting from the Secondary Psychological Injury.

DECISION:

The Appeal Panel ultimately agreed with the Appellant. It found that the Medical Assessor did not adequately exclude the impairment resulting from the secondary psychological injury.

In their reasoning they referred to s65A(1) of the Workers Compensation Act 1987, where it is clear that no WPI compensation is payable in respect of permanent impairment that results from a secondary psychological injury. Thus, the Panel noted that the task of the MA was to only assess the impairment that resulted from the primary psychological injury.

However, when completing the PIRS rating form, the MA did not distinguish between symptoms resulting from the primary psychiatric condition and the secondary condition. It was not clear from the MAC that the MA had considered the intricacies of both injuries and excluded the effects of the secondary psychological injury.

The Medical Assessment Certificate was set aside based on a demonstrable error, and the case was referred back to the Commission for a determination on the primary and secondary psychological injuries.

LESSONS FOR EMPLOYERS AND INSURERS:

The takeaway here is that s65A(1) is a disentitling provision.

Thus, when there is the presence of a secondary psychological injury, any expert whether an Independent Medical examiner or Medical Assessor should be asked to:

  • Distinguish the symptoms between the primary and secondary psychological injury
  • Assign a WPI only considering the impairment that arises from the primary psychological injury or exclude from their assessment the impairment resulting from secondary psychological injury.

 

Contributor: Melissa Cuadros Lu

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.