GN 2.2 Injury
Application: This guidance applies in part to exempt workers
Overview
The basic proposition of the workers compensation scheme in NSW is a worker who has received an injury shall receive compensation from the worker’s employer - see section 9 of the Workers Compensation Act 1987 (the 1987 Act).
This guidance discusses what constitutes an injury and what follows from that. The question as to whether a worker has suffered an injury requires insurers to review all the relevant facts in each individual case.
It is important to understand that compensation is payable for the consequences that result from an injury, not for receiving the injury itself.
What constitutes an injury?
As defined in section 4 of the 1987 Act, the definition of injury:
a) means personal injury arising out of or in the course of employment
b) includes a disease injury which means:
(i) a disease that is contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
Further information on disease injury can be found in Insurer guidance GN 2.2A Disease injury.
Note: For exempt workers, employment needs to be a substantial contributing factor rather than the main contributing factor. See the exempt worker provisions for the different requirements for exempt workers including paramedics, police officers and firefighters.
The elements of injury
In workers compensation, an injury can be both a personal injury and a disease injury. It doesn’t have to be one or the other. For example, a worker who suffers a personal injury like a fall can also aggravate an underlying disease in the same incident.
Personal injury and disease injury
Nature of injury | Test of contributing factor |
---|---|
Personal injury | Employment must be a substantial contributing factor to the injury. See section 9A of the 1987 Act |
Personal injury on a journey | There must be a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. See section 10(3A) of the 1987 Act |
Disease injury | Employment must be the main contributing factor (or substantial contributing factor for exempt workers) to the contraction of a disease or the aggravation, etc of a disease. See section 4 of the 1987 Act |
Heart attack or stroke injury | The nature of the employment concerned gave rise to a significantly greater risk of heart attack or stroke. |
Personal injury
NSW workers compensation legislation recognises two types of injury - personal injury and disease injury.
A simple way to distinguish between personal injury and disease injury is that ‘personal injury’ usually refers to a physical injury and a ‘disease injury’ is an illness, sickness or ailment.
Psychological injuries can be either personal injuries or disease injuries.
A personal injury does not have to be due to an external physical trauma. A rupture of an aneurysm is an example of a personal injury due to an internal cause. A personal injury can be as simple as a bruise or soft tissue strain or as severe as a broken bone or brain injury.
Many cases have described what constitutes a personal injury in order to be eligible to claim workers compensation.
Relevant case law - personal injury
Arising out of or in the course of employment
A personal injury must arise out of the employment (that is, be related to employment), or be sustained in the course of employment (that is, while performing work duties or something incidental to those duties).
A disease injury must be contracted in the course of employment, or aggravated, etc in the course of employment.
Relevant case law - arising out of employment
Relevant case law - in the course of employment
Additional requirements for injury
Employment as a substantial contributing factor
Since 12 January 1997, for a personal injury (not a disease injury), to be compensable, employment must have been a substantial contributing factor (see section 9A of the 1987 Act).
Requirements of section 9A of the 1987 Act
Section 9A of the 1987 Act requires that the employment concerned must be a substantial contributing factor to the injury (not to what results from the injury).
Once it is established that employment is a substantial contributing factor to the injury, the causal test is satisfied. There is no requirement that employment be a substantial contributing factor to ongoing incapacity or the need for medical treatment.
Section 9A(2) of the 1987 Act provides examples of the factors to be taken into account, including, but not limited to:
- the time and place of the injury
- the nature of the work performed and the particular tasks of that work
- the duration of the employment
- the probability that this or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if they had not been at work or had not worked in that employment
- the worker’s state of health before the injury and the existence of any hereditary risks
- the worker’s lifestyle and their activities outside the workplace.
Whether employment was a substantial contributing factor to an injury is determined through the consideration of the relevant facts and evidence in each case.
The link between an injury (whether a personal injury, a disease contracted in the course of employment, or the aggravation etc of any disease) and the worker’s employment must be ‘real and of substance’ and is a matter of ‘impression and degree’ (Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324).
Employment does not have to be the sole or main contributing factor, provided it is ‘real and of substance’.
Note: Section 9A of the 1987 Act does not apply to:
- a disease injury (see Insurer guidance GN 2.2A Disease injury)
- an injury sustained on a journey (see section 10)
- an injury sustained during a recess (see section 11), or
- an injury sustained by a trade union representative (see section 12).
Conduct of a worker
Serious and wilful misconduct
There is no entitlement to compensation if the worker’s injury is solely attributable to their serious and wilful misconduct (section 14(2) of the 1987 Act). Both of these elements must be proven.
To be a wilful act, a worker’s actions must be deliberate with full knowledge of the consequences (as opposed to an impulsive action). However, if an injury results in death or serious and permanent disablement, there may still be an entitlement to compensation.
Intentional self-inflicted injury
Compensation is not payable if an injury or death of a worker was caused by intentional self-inflicted injury (see section 14(3) of the 1987 Act). However, there are circumstances where a suicide may not be considered to be an intentional act (see Insurer guidance GN 5.12 Death claims).
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