Grace v State of New South Wales (NSW Police Force) [2022] NSWPIC 280 (9 June 2022)

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWPIC/2022/280.html

The question in this matter concerned the assessment of the Applicant’s whole person impairment, and whether the medical assessor selected by the Personal Injury Commission should be allowed to assess the portion of the Applicant’s injury which results from exposure to trauma specifically from car accidents.

The Workers Compensation Act 1987 (WCA) provides scope for insurers to recovery their loss, wholly or in part, for injuries sustained at the fault of other tortfeasors. This usually concerns motor vehicle accidents (MVAs) and the car’s compulsory third party insurer. In this matter, the Applicant had identified two MVAs which he had attended as a general duties officer as partly causative of his psychological injury.

The Insurer’s solicitor sought to have the medical assessor provide his opinion on the potion of the Applicant’s injury resulted from these MVA incidents in his assessment. Though not strictly relevant to the proceedings at hand, being the assessment of the Applicant’s psychological permanent impairment, having the assessor apportion the injury in this way would expedite any s151Z of the WCA recovery process.

Apportionment of one’s permanent impairment is usually reserved for cases in which the Applicant has a number of dates of injury, or injuries at different employers.

Held

Member Homan found that as the Applicant had sustained a single injury, PTSD, and that the MVA of April 2016 was only another causative event, not a separate mechanism of injury, it was appropriate for the assessment to be made as a global impairment assessment.

Noting the matter before the PIC did not concern the s151Z recovery proceedings there was no basis to include the apportionment in the medical assessor’s referral.

Learning for Insurers

While this matter did not allow for an apportionment to be made, where potential s151Z recovery is considered viable, specific, and discrete questions to a medical examiner should be asked to establish medical causation, especially where the development of a worker’s psychological injury is multifactorial.

Contributor: Alex Gaudie

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.