STATEMENT OF REASONS

BACKGROUND

1. There is no issue the applicant, Lorraine Valerie De’Athe suffered a psychological injury while in the employ of Frost Antiques Pty Ltd (the respondent). The applicant seeks payment of permanent impairment compensation in respect of that injury.
2. The question for determination by the Personal Injury Commission (Commission) is the correct date of injury. The relevance of that issue to the present proceedings is the presence of two insurers indemnifying the respondent at various junctures.
3. The respondent was insured by GIO from (relevantly) 1995 until 30 June 2011. During this period, there is no issue the applicant suffered a psychological injury and was absent from work. She later returned to work and remained in the respondent’s employ until her employment ceased on 22 July 2011, at which time the respondent was insured for workers’ compensation purposes by EML. The applicant brings a claim for permanent impairment compensation for a psychological injury said to have arisen between her return to work after the 1995 injury and her last day of employment on 22 July 2011.
4. The parties agree that the applicant’s claim will be referred for medical assessment, however, the Commission must first determine the date of injury.
5. By way of further background, it is important to note the applicant lodged a claim for psychological injury on 25 August 1995, which claim was accepted by QBE, who at that time were acting on behalf of GIO in the respondent’s interests.
6. On 28 June 2012, QBE in the interests of GIO issued a dispute notice declining liability for the applicant’s injury on the basis that employment did not cause her incapacity for work. The applicant then commenced proceedings in the then Workers’ Compensation Commission alleging psychological injury due to nature and conditions of employment with a deemed date of injury of 25 August 1995. The applicant also alleged a second psychological injury said to have been suffered during the period of employment from 1 October 1997 to February 2011. Those proceedings were ultimately discontinued.
7. In 2014, the applicant again commenced proceedings in the Workers’ Compensation Commission seeking compensation consistent with the previous proceedings, with updated supporting material. Those proceedings were discontinued. In February 2015, GIO identified and alleged there were two claims allegedly caused by the nature and conditions of the applicant’s employment. It alleges the injury caused in 1995 was managed by QBE and that an injury on 28 February 2011 (deemed) fall under GIO’s period of insurance.
8. On 24 April 2020, the applicant’s solicitors issued a letter of claim for s 66 permanent impairment compensation in respect of 22% whole person impairment, with a deemed date of injury of 25 August 1995 to 22 July 2011, relying on the report of Dr Chow.

ISSUES FOR DETERMINATION

9. The parties agree that the only issue for determination is, by reference to the correct date of injury, which the insurer is on risk for the applicant’s accepted injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

10. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
11. The parties attended a hearing on 18 August 2023. At the hearing, the applicant was represented by Mr Carney of counsel instructed by Mr Afgan. The respondent in the interests of EML was represented by Ms Balendra of counsel instructed by Mr Drury and the respondent in the interests of GIO was represented by Mr Combe of counsel instructed by Mr Orr.

EVIDENCE

Documentary evidence

12. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (the Application) and attached documents;

(b) Reply lodged in the interest of EML and attached documents;

(c) Reply lodged in the interest of GIO and attached documents, and

(d) Application to Admit Late Documents (AALD) and attached documents lodged by the respondent in the interest of GIO.

Oral evidence

13. There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The date of injury

14. In the interests of GIO, Mr Combe submitted there was no dispute his client insurer’s last day of risk was 30 June 2011. That submission is not contested by any other party to the proceedings. He submitted that the relevant claim is one for permanent impairment and as a result, the correct deemed date of injury was 22 July 2011, being the last date of employment with the respondent.
15. Mr Combe referred to the report of Dr Bertucen, treating psychiatrist dated 13 October 2011 in which Dr Bertucen diagnosed the applicant is suffering from post-traumatic stress disorder as a result of her employment.
16. Mr Combe noted the applicant had been employed with the same employer for 25 years, and that there was no issue the applicant ceased employment on 22 July 2011 when she was admitted to St John of God Hospital for symptoms relating to her injury. Mr Combe submitted the applicant’s evidence is she was employed until 22 July 2011, and if that is the case then the date of her cessation of employment is the relevant date of injury.
17. Mr Combe took the Commission to s 15 of the Workers Compensation Act 1987 (the 1987 Act). That section relevantly provides:

“(1) If an injury is a disease which is of such a nature as to be contracted by gradual process:

(a) The injury shall for the purposes of this Act be deemed to have happened:

(i) At the time of the worker’s death or incapacity, or

(ii) If death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury; and

(b) Compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”

18. Mr Combe submitted the medical evidence clearly showed a continuation of the applicant’s symptoms up to and including the time when she ceased work on 22 July 2011. I accept that submission, consistent as it is with the applicant’s lay evidence and with the treating and medicolegal opinion in the case.
19. Mr Combe also submitted this was not a matter in which apportionment between the two insurers was available, given there was only one employer and there is only one claimed injury for which permanent impairment compensation is payable.
20. In the interests of EML, Ms Balendra noted the date of injury as claimed was said to be from 25 August 1995 until 22 July 2011. Assuming the applicant was making a claim in relation to an injury in the nature of a disease of gradual process, she submitted the claim commenced on 25 August 1995 and ended on 22 July 2011.
21. Ms Balendra submitted the Commission would enquire as to what was actually causative of the applicant’s injury. She submitted the answer to that question would be that there was a significant contribution from 1995 until the date GIO ceased to be on risk.
22. Ms Balendra submitted the applicant’s real difficulties arose before 1995, and that afterwards her condition had improved. This being so, she submitted one could not reasonably find the applicant’s conditions of employment after 1995 caused her injury. Ms Balendra submitted that in reference to ss 15 and 16 of the 1987 Act, the correct date of injury would be 25 August 1995, which was also pleaded in the Application.
23. For the applicant, Mr Carney noted the applicant’s statement, in which she referred to ongoing stressors after she returned to work in 1996 up to the time her employment ceased. He noted the applicant, whose evidence he asked the Commission to accept, stated there were no changes in work conditions during the period between her return to work and her final cessation of employment.
24. Mr Carney submitted the matter was a disease case and the fact the pleading referred to conditions of employment between 1995 and 2011 is not important, as there is a deemed date of injury, which in this case he submitted is 22 July 2011. Mr Carney further submitted if there is a reason to apply a s 323 deduction, the relevant Medical Assessor will do so, and noted there can be no date of injury before 2001, as there was no psychological injury available under the relevant legislation before that time. Broadly, Mr Carney adopted Mr Combe’s submissions in relation to the date of injury.
25. In reply, Mr Combe noted there was only one injury, that with a deemed date of 22 July 2011, and that was the date submitted by the applicant in her claim. He noted EML was on risk at that date. He submitted the 1995 injury is immaterial, given there was no entitlement to permanent impairment compensation for psychological injury at that time. Mr Combe submitted that EML will be able to rely on that prior injury to assert a deduction should be made pursuant to s 323 of the 1998 Act, however, the existence of that injury was immaterial for the purposes of determining liability in this matter, immaterial.
26. On balance, I accept the submissions of Mr Combe in the interests of GIO and those of Mr Carney for the applicant. The applicant’s injury is pleaded as a disease of gradual process and having a deemed date of injury of 22 July 2011, the date when she ceased employment. In my view, the state of the law is clear. The date when the applicant ceased employment is the relevant deemed date of injury, being the date when she suffered an incapacity as a result of her claimed injury. At that deemed date of injury, EML was on risk.
27. Accordingly, in my view, EML is liable for any compensation arising from the permanent impairment claim in those proceedings, subject to any deduction made for the ongoing effects, if any, of the 1995 injury. Accordingly, there will be an award for the respondent in the interest of GIO against the applicant, and the Commission will make the findings and orders as set out on page one of the Certificate of Determination.