Bell v The Mining Pty Ltd: A Case Summary
Published on November 29, 2024 by Amelia Frisch and Hanaan Indari
The Personal Injury Commission recently issued a decision which provides clarification for those dealing with workers compensation claims where the worker has sustained both a psychological and physical injury.
From about March 2017, Brandy Bell worked full-time as a truck operator for The Mining Pty Ltd.
On 3 July 2021, Mr Bell was asked to perform a welfare check on another employee who had been on sick leave for a few days. He attended the motel where the other employee resided and, when no one answered the door, he entered the room with a key given by the motel staff. He found his colleague deceased on the floor from natural causes.
Mr Bell subsequently developed psychological symptoms as he continued at work, experiencing sleep difficulties, low mood, and anxiety.
After about 2 weeks, he ceased work and later came under the care of a psychologist, a psychiatrist, and a nutritionist.
He was diagnosed with Post Traumatic Stress Disorder (PTSD) and due to consequential weight gain, was diagnosed with Type 2 Diabetes in late August 2022.
Mr Bell’s solicitors brought a section 66 lump sum compensation claim on his behalf for both his PTSD and diabetes for a combined 23% whole person impairment – made up of 19% for his PTSD, and 5% for his diabetes.
The workers compensation insurer did not dispute that the worker had sustained PTSD due to the incident, nor was it disputed that he had subsequently developed a consequential endocrinological condition of Type 2 Diabetes.
Rather, it was disputed that Mr Bell was entitled to make a whole person impairment claim for his diabetes and that the whole person impairment assessments could be aggregated. In doing so they relied on section 65A(4) of the Workers Compensation Act 1987, which states:
“If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries”.
The matter was initially heard on 20 June 2023 before Member Rachel Homan [1].
Mr Bell’s solicitors argued:
- The psychological impairment should be aggregated with his physical impairment in reliance of s 65 of the 1987 Act and s 322 of the 1998 Act.
- Section 65A(4) had no application in the circumstances of the case, as the physical condition was not an “injury”.
- The only injury occurring on 3 July 2021 was a primary psychological injury (i.e., PTSD) and no physical injury occurred in that event, as the physical injury occurred sometime later as a result of weight gain consequential to the psychological injury.
The Respondent’s solicitors argued that:
- Section 65A should apply and the Applicant was not entitled to compensation for both his psychological and physical impairments.
- The term “injury” in s65A(4)(a) encompassed a consequential condition.
- Given the degree of permanent impairment for the Applicant’s physical condition did not exceed the 10% threshold in s 66(1), only the psychological injury could be referred to a Medical Assessor.
Member Homan ultimately reserved her decision.
In the Certificate of Determination dated 21 June 2023, it was concluded that the impairment resulting from the primary psychological injury could not be aggregated with the impairment resulting from the consequential endocrinological condition. Further, as the claim for the consequential condition did not exceed the 10% whole person impairment threshold, it was not capable of referral to a Medical Assessor.
Accordingly, the matter was remitted for referral to a Medical Assessor to determine his level of whole person impairment for the psychological injury only.
Mr Bell’s solicitors brought an appeal on a single ground, namely that “The Member erred in finding that s 65A(4) precludes the aggregation of a primary psychological injury with a consequential physical condition”.
The appeal was heard before Deputy President Michael Snell. In his decision dated 17 June 2024, it was found that Member Homan’s construction of s 65A(4) was consistent with the purpose of that subsection when reading it together with ss 65, 65A and 66 of the 1987 Act, and s 322 of the 1998 Act.
As a result, the Member’s Certificate of Determination dated 21 June 2023 was confirmed.
This decision serves as an important reminder that careful consideration must be made in cases involving both psychological and physical injuries, noting the operation of section 65A(4).
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
