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A recent case involving the Personal Injury Commission highlighted the strenuous process that injured workers undergo to receive their compensation, sometimes leading to an exacerbation of these injuries.
A worker who suffered a psychological injury back in 2015 during her role as a union organiser for Health Services Union NSW made a successful claim for workers' compensation, receiving weekly benefits, treatment, and other medical expenses.
In 2023, the worker attempted to claim lump sum compensation, which could only be granted if she was able to establish that she had suffered a degree of permanent impairment of at least 15 per cent on the psychiatric impairment rating scale (PIRS) from her psychological injury sustained during her employment.
To establish this, the worker relied upon a doctor’s assessment, who concluded that the worker was in fact suffering from a whole person impairment of 15 per cent. Despite this first assessment finding evidence of the worker's impairment, it was disputed by the Health Services Union NSW insurer, leading to the worker having to visit another psychiatrist for assessment.
The second assessment found that the worker only had a whole person impairment of 6 per cent, well below the threshold for a lump sum compensation payment.
This led to the worker filing an application to the Personal Injury Commission of NSW to resolve the dispute pertaining to her impairment. From this, another doctor was enlisted to assess the worker. This doctor agreed with the findings of the first doctor, establishing a whole person impairment of 15 per cent.
However, the Health Services Union NSW insurer yet again disputed the findings, filing an appeal. This appeal was overseen by a panel consisting of two medical assessors and a member of the Personal Injury Commission.
After another review of the worker's whole person impairment, the panel established the impairment at 7 per cent.
The worker proceeded to file a summons seeking a judicial review of the appeal panel’s decision, contesting the 7 per cent assessment based on various overlapping instances of “legal error” by the panel.
The review by the NSW Supreme Court did find errors by the panel, which included the fact that they failed to account for the workers' “deteriorating” condition between the various assessments.
The appeal panel's establishment was therefore set aside by the court, which tasked the president of the Personal Injury Commission with constituting a different appeal panel for reassessment of the impairment to determine whether she can receive the lump sum compensation.
The court ordered Health Services Union NSW to cover the workers' costs.
Overall, the worker underwent four different assessments reviewing her impairment after filing the original lump sum claim on 7 March 2023.
The compensation process ‘breaks them’
HR Leader spoke to Sach Fernando, principal lawyer at Maxiom Injury Lawyers, about the case. Fernando claimed that it’s not “uncommon” for instances like this to occur where doctors disagree on the assessment of psychological injuries, especially when PIRS is involved.
“It is not uncommon for there to be differences in medical opinions regarding a worker's personal impairment. This is particularly evident in psychological injury claims where assessments can be subjective and dependent on the injured worker's presentation on the day of the assessment.”
“In Rogers, we saw the judge critically note that the conflicting views among the doctors created a challenge in accurately applying the guidelines pertaining to the PIRS. Such discrepancies can result in significant differences in outcomes, including the potential loss of a lump sum compensation benefit.”
Fernando touched on how the often rigorous compensation process for injured workers could exacerbate psychological injuries.
“I've been doing this for 15 years, and as someone who has witnessed the lived experience of injured workers day in, day out, it's very clear that the very system that's meant to support them often does the opposite,” he said.
“The insurance framework that injured workers have to be part of, combined with the legal process, the adversarial legal process, is not conducive to the psychological wellbeing of injured workers. In fact, it breaks them.”
“From the moment their work cover claims are lodged, injured workers are subjected to scrutiny, and they have to prove the authenticity, the legitimacy, of their injuries in circumstances where they've injured themselves through no fault of their own.”
“That then becomes the predominant consideration when dealing with their psychologist. It's no longer the pain from their injuries, it's more the bureaucracy and being put through the wringer to prove themselves, essentially, in circumstances where they've done nothing wrong.”
This case is Rogers v Health Services Union NSW [2025] NSWSC 291 (31 March 2025).
RELATED TERMS
Compensation is a term used to describe a monetary payment made to a person in return for their services. Employees get pay in their places of employment. It includes income or earnings, commision, as well as any bonuses or benefits that are connected to the particular employee's employment.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
