Personal injury or disease?

Under the Workers Compensation Act 1987 (NSW) (“WCA”), workers may be able to recover compensation if they suffer a personal injury or a disease injury.

So, what’s the difference between a personal injury and a disease? 

This question was considered in a recent decision of a Presidential member of the NSW Workers Compensation Commission: Ky v Blue Leaf Food Group Pty Ltd.

The facts

Ly Meng Ky worked as a picker, packer and forklift driver with two different employers. He gradually developed increasing stiffness in his right shoulder.

Mr Ky’s condition was variously diagnosed as rotator cuff damage and impingement syndrome secondary to tendinosis and bursitis.

After being retrenched by his last employer in early 2015, Mr Ky claimed lump sum compensation against his first, earlier employer.

That employer, Blue Leaf Food, argued it was not liable to pay compensation because Mr Ky had suffered a disease injury and not a personal injury.  On that basis Blue Leaf argued Mr Ky’s second (last) employer was liable for the shoulder injury (by operation of the deeming provisions in section 15 or 16 WCA). 

If Mr Ky was found to have suffered a personal injury, Blue Leaf would be liable.  If he was found to have suffered a disease injury it would not be liable. 

An arbitrator in the Commission concluded Mr Ky’s shoulder condition was a disease and that Blue Leaf was not liable because it was not the last causative employer. 

Mr Ky appealed against that decision to a Presidential member of the Commission.

What is an injury?

 Quoting at length from a recent High Court decision,[1] Deputy President Snell held:

• To be a “personal injury”, an injury does not have to be “sudden” – it can develop over a period of time.
• However, to be a personal injury there has to be some kind of identifiable physiological change.
• This physiological change must be different from the natural progression of an underlying disease.

Because the Arbitrator had not applied these principles, the case was sent back for re-hearing.

Lessons

There have been cases where the gradual development of conditions such as those suffered by Mr Ky have been classified as diseases.  The fact that a condition has developed over time has been a factor in reaching that conclusion.

However, it is now clear that the mere fact a condition develops over time may not prevent it from being classified as a personal injury for workers compensation purposes.

Why does it matter?

The tests for liability for “personal injury” and “disease injury” under the WCA differ.  So is the law which tells us when an injury occurs, or is deemed to occur.  Being able to differentiate between personal injury and disease injury can be important in determining whether an employer is liable for compensation. 

Authors: Will Murphy and Stephen Ke

[1] Military Rehabilitation and Compensation Commission v May [2016] HCA 19.