Purkiss v Secretary, Department of Education [2022] NSWPIC 269
Date of decision: 3 June 2022
Before: Personal Injury Commission, Member Rachel Homan
Background:
The worker asserted suffering a primary physical injury and secondary psychological injury on 15 November 2019, when she was struck on the head with a soccer ball, initially suffering a mild traumatic brain injury) and a primary psychological injury deemed to have been suffered on 27 January 2021 as a result of perceived bullying and harassment at work. This occurred during the return-to-work process from the first injury.
The following was in dispute:
- That a new psychological injury had been suffered;
- Entitlement to statutory compensation flowing from that injury.
However, liability for the secondary psychological injury from the 2019 event remained accepted and the worker had remained in receipt of weekly benefit compensation from the initial injury.
The worker sought weekly benefit compensation payable pursuant to ss36 and 37 of the WCA from the second injury.
Proceedings:
The Applicant submitted that until she was involved in the hostile return to work process, she suffered no incapacity as a result of any secondary psychological symptoms nor did her primary physical injury cause a total incapacity for work.
She suffered an adjustment disorder being a primary psychological injury as a result of her perceived mistreatment.
This injury gave rise to a total incapacity for work.
The Respondent submitted that her psychological symptoms were all part of the one claim, with the injury being secondary to the head injury in combination with what occurred on her return to work.
The worker was considered unfit for work due to ongoing physical and psychological complaints.
It was submitted by the Applicant that she was entitled to two awards See: Cordina Chicken Farms Pty Ltd v Thoa Hong Le, although the compensation payable must not exceed what she would have earned had she remained uninjured. It was further submitted that a discretion had to be applied to reduce payment in order to prevent what was perceived as overcompensation however, neither s36 or s37 of the WCA provided for such a discretion, as did the former s40 of the WCA. In the absence of same, it was said the worker could receive weekly compensation in excess of her PIAWE (consistent with a worker with highest needs where benefit under s38A exceeds PIAWE) See: Hee V State Transit Authority of NSW.
The Respondent submitted that the scheme was designed to compensate workers for a loss as a result of an incapacity, not put them in a better position than they would have been but for the injury.
It was said that the worker was only suffering from one injury resulting from the November 2019 event and that she had been psychologically impaired since then.
It was submitted that incapacity may result from more than one cause See: Cluff v Dorahy Bros (Wholesale) Pty Ltd but the entitlement to compensation is to be calculated in keeping with the earnings at the time injury was suffered from which the incapacity results. They said that Hee was distinguishable on its facts and irrelevant to the matter at hand.
Decision:
Member Homan affirmed that psychological injury was not in dispute and found the worker suffered secondary psychological injury from physical injury in 2019.
She also accepted the evidence which confirmed a separate primary psychological injury relating to the work practices of the employer, with a further date of injury and cause for same; namely perceived bullying and harassment, consistent with Attorney General’s Department v K [2010] NSWWCPD 76.
The Member noted that both IMEs were largely in agreeance with Dr George’s opinion suggesting an injury was suffered in keeping with s4(b)(ii) as he felt the head injury was exacerbated by the circumstances following her return to work; but this was an incorrect test. With deference to the correct legal test set out in Cannon V The Healthy Snack People Pty Ltd, the member found that psychological injury had not occurred secondary to physical injury but had resulted from the (perceived) harassment being an ‘extraneous or extrinsic’ event to original injury.
Having found a separate and distinct injury had been suffered, the Member turned to the issue of capacity, finding the evidence relied upon permitted a finding to no work capacity for about a year.
In terms of entitlement to wages, the Member found Hee did not apply.
She determined that s46 of the WCA can be applied to reduce weekly payment compensation to prevent dual benefits of the same kind being payable in respect of an incapacity for work.
The worker had received weekly benefit compensation in the period in which she was determined to be totally unfit due to primary psychological injury. In keeping with Cordina, it was possible for an Applicant to have two separate and distinct incapacities (and awards) but it was also possible to have one incapacity from two injuries. The Member found the worker to have suffered two injuries but incapacity resulting from each injury was the same.
She applied a discretion pursuant to s46 of the WCA in order that the weekly payments payable for the primary psychological injury were to be reduced to prevent the payment of dual benefits of the same kind.
Ostensibly, the worker was to be paid the difference between what she was entitled to receive for the second injury and what had been paid in connection with the first.
Lessons for Employers and Insurers
It is well established that primary psychological injuries can flow from events stemming from the management of another injury. The return-to-work process can be tricky and must be managed carefully to avoid the worker feeling unsupported and to prevent further claims exposure.
There remains no challenge to the principals laid down in Attorney General’s Department v K regarding perception.
Whilst a discretion was applicable in this particular case, there remains a lack of discretionary power to reduce weekly benefit compensation payable due to other circumstances such as sickness, incarceration, pregnancy, maternity leave etc ; all of which may produce an incapacity for work unconnected with the compensable injury, as the former s40 did, however, this lack of discretion does not necessarily translate into an entitlement exceeding PIAWE had injury not been suffered. However, the decision is a positive one to defence of such claims and is a guide for insurers to argue that s46 provides a mechanism to reduce weekly benefits to prevent dual benefits of the same kind being made by the employer in similar circumstances.
Contributor: Shannon Watts
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.