In issue
- Whether psychiatric and physical impairments arising out of the one injury can be combined in order to reach a threshold of permanent impairment under s 71 of the Workers Rehabilitation and Compensation Act 1988.
The background
At the time of the injury the worker was working as a police officer. On 28 January 2007 he was assaulted during the course of his employment and sustained an injury to his cervical spine and post-traumatic stress disorder (PTSD). The worker made a claim for workers compensation which was accepted by his employer. He later sought a determination of his entitlement to an award of lump sum compensation for permanent impairment.
The decision of the Tribunal
Under s 71(1)(a) of the of the Act, a worker who suffers a permanent whole person impairment (WPI) assessed at a percentage of less than 5% resulting from an injury is not entitled to compensation under the Act and under s 71(2) of the Act, a worker who suffers a WPI assessed of less than 10% resulting from a psychiatric injury is not entitled to compensation under the Act. These are the respective thresholds for entitlement.
The appellant asserted his WPI for the purposes of s 71 was 11%, on the basis that his psychiatric impairment was 6% and his impairment resulting from his cervical spine injury was 5% (combined to 11% WPI).
After considering the construction of ss 71 and 72 of the Act the Chief Commissioner found that because the impairment resulting from the PTSD (being 6%) fell below the statutory threshold of 10% for psychiatric impairments it was not compensable. Even if it had exceeded the threshold, he considered that it could not have been combined with a physical impairment in assessing WPI.
On appeal the worker argued that the Commissioner erred in law and argued that the WPI for PTSD should be included in the overall assessment together with the impairment for the cervical spine injury.
The issues on appeal
The matter was appealed to the Supreme Court of Tasmania and the Court referred the matter for determination by the Full Court of Appeal.
The issue before the Full Court of Appeal was whether of the Tribunal erred in their construction of ss 71 and 72 of the Act.
The decision on appeal
The Full Court determined that s 71 deals with two separate enquiries: s71(1) deals with impairments other than psychiatric impairments, and 71(2) deals with psychiatric impairments and that s 71 is a gateway provision which provides a ‘fork in the road’ between permanent impairment that is not psychiatric in 71(1), and psychiatric impairment in 71(2).
Because there are separate inquires between psychiatric and non-psychiatric impairments under s 71, the Full Court held that the worker was not permitted to combine the 5% WPI figure for the cervical spine injury with the 6% psychiatric PTSD figure to reach either threshold required by s 71(1) or 71(2).
The Full Court did however go on find that such a combination is permissible when it comes to the assessment of impairment under s 72(2). Therefore, once either the 5% threshold in s 71(1) or the 10% threshold in 71(2) has been met, it is then permissible to combine the appellants 5% and 6% for the purposes of assessing the WPI as compensation payable to the worker under the Act.
Simply put, the Court held that the combination of WPI cannot be carried out to reach a threshold specified in s 71. It can, however, be carried out for the purposes of calculating the amount of compensation owed to a worker, provided either of the thresholds in s 71 is met.
Implications for you
What this means is that the Court has defined s 71 as a fork in the road, whereby a worker must meet one of the paths to entitlement to compensation (5% for physical injuries or 10% for psychiatric injuries) before then being able to combine such impairments. Remember that the important takeaway is that the impairments must result from the injurious event, not as a secondary consequence. The obvious example is linked to this case, the police officer physically assaulted in the course of his or her employment. He or she suffers a physical injury from the assault (e.g. broken wrist) but also from the injurious event (the assault) suffers a psychiatric disease (e.g. PTSD). You will see that both the broken wrist and the PTSD are primary injuries (in the wide sense of the term). It is these types of employees and the claims they make that need to be reviewed for the resulting injuries, and then down the track their resulting WPIs.
