Common law damages not accessible by combining primary and secondary impairments26 April 2017
A recent case in Tasmania, State Fire Commission v Benefield  TASSC 20, confirms that employers cannot combine impairment assessments from physical injuries with secondary psychiatric conditions to reach the 20% threshold required to access common law damages. The decision also reaffirms that an employer has an obligation to make reasonable efforts to return an injured worker back to work and that medical evidence must support a finding that they have a capacity for work.
What were the circumstances?
In 2012, a worker sustained injuries to his shoulders and neck after being struck by a metal cage's gate. Subsequently, the worker also suffered post-traumatic stress disorder (PTSD). The worker made a claim for weekly payments of compensation, and medical and like expenses, which was accepted. However, the employer (State Fire Commission) disputed the worker's whole person impairment assessment—as part of a permanent impairment claim—as well as his ongoing entitlement to physiotherapy and weekly payments. The matter was referred to the Workers Rehabilitation and Compensation Tribunal, where the injured worker was successful on each dispute.
The employer lodged an appeal to the Supreme Court of Tasmania on the basis that:
- the Tribunal allowed the injured worker to combine his degrees of impairment arising from PTSD and physical injuries to meet the 20% whole person threshold for claiming damages (the Tribunal assessed 22% whole person impairment, 5% of which was related to the physical injuries), and
- the medical evidence did not establish that the injured worker had no capacity for work.
Supreme Court's findings
The Supreme Court referred to s 72(2)(a) of the Workers Rehabilitation and Compensation Act 1988 (Tas.), which states that "any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury" should not be considered when assessing whole person impairment. It found that the Tribunal had failed to take this section into account when it combined the impairment from the physical injuries with the psychological condition, which was secondary in nature. Accordingly, the Court varied the determination of impairment to 5% of whole person impairment, which was the percentage attributed to the physical injuries.
With respect to the injured worker's entitlement to weekly compensation, the Court found against the employer as there was no evidence that the State Fire Commission had taken any measures to return the worker to work and, therefore, could not show that the worker had work capacity. It held that the Tribunal was correct in its finding that the worker had no capacity for work.