Under NSW Workers Compensation law, injured workers are entitled to a permanent impairment claim if they are assessed at 11% Whole Person Impairment or greater for a physical injury or 15% Whole Person Impairment for a psychological injury. An assessment is carried out by qualified doctors.
On occasion, injured workers will have pre-existing conditions, injuries, or abnormalities of the same area of the body being assessed. When this occurs, a deduction can be made by the Doctor to exclude the level of impairment not related to the workplace injury and therefore not compensable, from the total Whole Person Impairment assessment.
The question has been raised, particularly for psychological injuries, where the previous injury or pre-existing condition or abnormality is asymptomatic at the time of assessment, and whether a deduction should be made for the prior injury. The Supreme Court decision of Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 and [2021] NSWSC 616 provided further clarity on this issue. In this matter the Plaintiff had worked for the NSW Police Force and in 2011 reported a PTSD injury following a colleague threatening him with a firearm. He made a permanent impairment claim and was assessed at 22%WPI. Mr Marks commenced new employment with the Department of Communities and Justice and sustained a further workplace injury with a diagnosis of major depressive disorder. He disclosed he had suffered the prior injury but that it had resolved and he was not having any further treatment in relation to the prior injury. In 2019 he was assessed at 21%WPI. Justice Simpson stated: “notwithstanding the plaintiff’s asymptomatic status at the time of his employment with the first defendant, he was nevertheless, by reason of his earlier experience of PTSD, rendered more vulnerable due to the subsequent harassment and vilification such that the earlier condition was ‘a significant factor’ in the assessment of the extent to which the current condition was caused by the events while he was an employee of [Police].”
Therefore, despite being asymptomatic, the medical evidence is still required to be reviewed objectively to decide whether there is any residual influence of a pre-existing injury on the worker’s current whole person impairment. If you have a workers compensation injury and require advice, please contact our office because Helping You is Our Business.
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