Eligibility

Definition of ‘injury’

An ‘injury’ means a personal injury arising out of, or in the course of employment and includes a disease injury (see ‘Disease injury’).

While personal injury is not defined in workers compensation legislation, the legal position is generally 'a sudden, identifiable pathological change'. The change can be large (for example, an amputation or paraplegia) or small (for example, a bruise or soft tissue strain).

An injury can be both a personal injury and a disease injury - a worker is not required to choose one or the other.

After it is established that the worker has suffered an injury, it must be established that the injury:

• 'arises out of’ the employment (that is, the worker being employed in the job caused, or contributed to, the injury), or
• be sustained ‘in the course of’ employment (that is, while performing work duties or something incidental to those duties).

Only one aspect needs to be met.

Most personal injuries are easily identified. For example, if a worker falls off a ladder while working and breaks their arm, they will have suffered a personal injury both arising out of, and in the course of their employment.

Note: A disease injury must be contracted in the course of employment, or aggravated, etc in the course of employment. See ‘Disease injury’

Further information can be found in Insurer guidance GN 2.2 Injury.

Employment as a substantial contributing factor

Section 9A of the Workers Compensation Act 1987 (1987 Act) requires that employment must be a ‘substantial contributing factor’ to the worker’s injury (other than a disease injury) for any compensation to be payable.

There is no requirement for employment to be the only substantial contributing factor to the worker’s injury. There may be other factors that are also substantial contributing factors to an injury, both employment and non-employment related.

Section 9A(2) of the 1987 Act provides six examples of factors to be taken into account in determining whether a worker's employment was a substantial contributing factor to an injury:

• the time and place of the injury
• the nature of the work performed, and particular tasks involved
• the duration of the employment
• the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if the worker had not been at work or 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

However, the examples do not limit the kind of matters that can be considered.

Refer to Insurer guidance GN 2.2 Injury for more information

Note: Section 9A does not apply to disease injuries (including aggravation of a disease). Instead, section 4(b) of the 1987 Act requires employment to be the ‘main contributing factor’. See ‘Disease injury’.

Injury considerations

Heart attack and stroke

Workers can claim compensation for heart attack or stroke only where the nature of the employment gave rise to a ‘significantly greater risk’ of the worker suffering the heart attack or stroke than if the worker had not been employed in work of that nature.

Serious and wilful misconduct

A worker may not be entitled to compensation if the worker’s injury is 'solely attributable' to the worker’s 'serious and wilful misconduct' (section 14 of the 1987 Act).

However, if an injury results in death or serious and permanent disablement, compensation will still be payable despite the worker's misconduct.

An example of serious and wilful misconduct is gross intoxication while operating a vehicle in the workplace.

Self-inflicted injury

Compensation is not payable if an injury or death of a worker was caused by intentional self-inflicted injury. However, there are situations when a self-inflicted injury, such as suicide, might not be held to be an intentional act. For example, where a worker suffers a work-related injury resulting in chronic pain and whose 'will was overborne so that the suicide was not an intentional act', the death may be compensable.

Psychological injury

A psychological injury may be regarded as either a personal injury or a disease injury (see 'Disease injury').

A psychological injury is a psychological (mental) disorder that includes a physiological (bodily) effect on the nervous system. Psychological injuries include diagnoses such as depression, and post-traumatic stress disorder (PTSD).

The certificate of capacity provided must use accepted medical terminology to describe the worker’s condition and include a clear diagnosis. Section 11A(7) of the 1987 Act specifies that terminology such as ‘stress’ or ‘stress condition’ do not satisfy the test.

Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.

A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition.

A secondary psychiatric or psychological condition arises as a consequence of, or secondary to, a physical injury (for example, depression associated with a back injury).

Psychological injury caused by reasonable action of an employer

Compensation will not be payable if the psychological injury was ‘wholly or predominantly’ caused by reasonable action taken or proposed by the employer with respect to:

• the transfer, demotion, promotion or dismissal of workers
• performance appraisal
• disciplinary action
• retrenchment or dismissal of workers
• provision of employment benefits to workers.

The insurer will consider the management of the above actions and consider whether the actions were reasonable as a whole. Evidence used may include employer procedural and policy documents (for example, grievance  or disciplinary procedures), and signed statements of other witnesses. However, compliance with the employer's procedures and policies may not be sufficient where these policies are unreasonable.

Further information about psychological injury caused by reasonable action of an employer can be found in Insurer guidance GN 2.3 Psychological injury.

Hearing impairment

Hearing impairment can result from a specific incident or event (also known as a ‘frank incident’) such as an explosion, or have a gradual onset (sometimes referred to as ‘boilermaker’s disease’ or ‘industrial deafness’).

A hearing impairment resulting from a frank incident is managed like any other personal injury.

Gradual onset hearing impairment

Workers making a claim for hearing impairment need to demonstrate that their hearing loss is due to their noisy employment.

When a worker believes they may have suffered a hearing impairment, they should consult their nominated treating doctor to obtain a referral to an ear, nose and throat specialist (ENT) for a hearing assessment.

The ENT will conduct a hearing assessment and provide a report detailing:

• the level of binaural hearing loss
• the proportion of the hearing loss attributable to the workplace noise
• recommended treatment (for example, whether the worker would benefit from the provision of a hearing aid).

Further information can be found in Part 4 of the Workers compensation guidelines.

Noisy employer

Most hearing loss claims are claims for compensation for hearing loss caused by a gradual process. The hearing loss is as a result of exposure over time to a noisy workplace.

When assessing the claim, the insurer will determine whether the employer against which the claim has been made is in fact a noisy employer. If the evidence confirms the employment was noisy, there may be no need for an expert assessment. If an occupational noise assessment is required, it is arranged and paid for by the insurer.

An occupational noise assessment will not be able to establish historic noise levels. In these cases the evidence to establish noisy employment will more likely involve detailed statements from the worker and medical evidence.

Date of injury

If, at the time of giving notice of the injury, the worker is employed at a noisy workplace, the notice of injury is deemed to be the date of injury.

If, at the time of giving notice of the injury, the worker is not employed at a noisy workplace (or not employed at all), then the date of injury is deemed to be the last day they were employed at a noisy workplace.

The insurer for the employer in question on the deemed date of injury is responsible for managing and paying compensation.

The insurer can seek a proportionate contribution from previous noisy employers in the five-year period preceding the date of claim (that is, the date the claim was lodged as distinct from the deemed date of injury).

Further information can be found in Insurer guidance GN 2.6 Hearing loss claims.

Recurrence

A recurrence occurs where a worker suffers a work-related injury and there is a later re-emergence of symptoms. A common-sense evaluation of the causal chain is required - that is, is the need for treatment/incapacity causally linked to the original injury?

The distinction between the recurrence of a previously accepted work-related injury or a new injury to a body part previously injured at work can be significant for workers and employers.

The insurer’s decision will impact the calculation of the worker’s benefits. It may also impact the employer’s insurance premium. Each case needs to be determined on its own facts and medical evidence.

Consequential condition

A medical condition that has resulted from a previous compensable injury is a consequential condition. That is, the condition is as a consequence of the original injury. An insurer will need to obtain and consider factual and medical evidence to determine whether the condition results from the employment injury.

It is not necessary for the worker to prove that the consequential condition arose out of or in the course of their employment. The worker has to establish that the consequential condition resulted from the compensable injury.

Here is an example of a decision on a consequential condition:

Further information can be found in Insurer guidance GN 2.7 Consequential loss.