Ringing the bell on physical injuries

Ringing the bell on physical injuries

The recent Personal Injury Commission (“PIC”) decisions of Bell v The Mining Pty Ltd have provided guidance to injured workers and their lawyers when dealing with workplace injuries that have resulted in both psychological and physical impairments.

The matter was first heard in the PIC in June 2023.  Mr Bell, a truck operator, suffered a primary psychological injury, namely Post-Traumatic Stress Disorder (“PTSD”) on 3 July 2021 after being directed to perform a welfare check on a co-worker and discovering his deceased body.

The Workers Compensation insurer (“insurer”) accepted that Mr Bell’s PTSD was caused by his employment. It was also not in dispute that Mr Bell had sustained a consequential endocrinological condition, namely Type 2 diabetes, due to his significant weight gain as a result of his PTSD.

Mr Bell brought a Whole Person Impairment (“WPI”) claim for lump sum compensation arising from his PTSD and diabetes in the amount of 23% WPI – made up of 19% for his PTSD and 5% for his diabetes. However, the insurer disputed that Mr Bell was entitled to make a WPI claim for his diabetes on the basis of s65A(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… in respect of impairment resulting from one of those injuries…”

Mr Bell’s lawyers argued that:

  • s65A(4) did not apply to Mr Bell as the only “injury” occurring on 3 July 2021 was a primary psychological injury in the nature of PTSD, not a physical injury;
  • his physical condition – an aggravation of a pre-existing diabetic condition – occurred sometime later as a result of his weight gain consequential to his PTSD; and
  • s65A says compensation is not payable for a secondary psychological condition but says nothing about secondary physical conditions.

The insurer’s lawyers argued that:

  • the purpose of s65A was to introduce a limited entitlement to compensation for psychological impairment – Mr Bell could rely on his psychological impairment or physical impairment but not both; and
  • the term “injury” in s65A(4)(a) encompassed a consequential condition.

PIC Member Rachel Homan found against Mr Bell and found for the Insurer.  She conceded that Mr Bell’s diabetes was compensable, being a condition that has “resulted from” his injury on 3 July 2021.  However, she confirmed that s65A(4) applies if a worker sustains a primary psychological injury and a physical injury, arising out of the same incident.  The WPI that results from the PTSD is to be assessed separately from the WPI that results from the diabetes and Mr Bell is only entitled to receive compensation for whichever WPI results in the greater amount of compensation being payable.  He is not entitled to receive compensation for the WPI assessment arising from the other injury.

Member Homan ordered: “Pursuant to s 65A(4) of the Workers Compensation Act 1987, permanent impairment resulting from [Mr Bell’s] primary psychological injury cannot be aggregated with any permanent impairment resulting from the consequential endocrinological condition.”

Mr Bell, though his lawyers, appealed Member Homan’s decision on the basis 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 June 2024 who dismissed Mr Bell’s appeal and upheld Member Homan’s decision, finding that Member Homan’s reading of s65A(4) was consistent with the purpose of that subsection when read in conjunction with other relevant sections of the Workers Compensation legislation.

Bourke Legal has acted for many injured workers who have sustained both psychological and physical injuries arising out of the same incident.  These claims need to be carefully managed, as medical evidence will usually need to be obtained in relation to both injuries to ensure the injured worker’s claim is brought in the most advantageous way.

If you are suffering from a workplace injury, get in touch with us today.  We can help you lodge a Workers Compensation claim, challenge a decision that you are not entitled to Workers Compensation or make a claim for lump sum compensation on your behalf.

Give us a call on 1300 026 875 or contact us via our website.