Albertsen v Westpac Banking Corporation [2025] NSWPIC 318; (3 July 2025)

Albertsen v Westpac Banking Corporation [2025] NSWPIC 318

WORKERS COMPENSATION - Workers Compensation Act 1987; applicant claims permanent impairment compensation payable under for psychological injury sustained in course of employment; respondent does not dispute psychological injury but disputes the deemed date of injury and percentage of whole person impairment (WPI) claimed; by consent, claim referred to Medical Assessor for assessment of WPI with provisional deemed date of injury of 9 February 2023; Held - deemed date of injury sustained in course of employment is 9 February 2023.

The deemed date of the injury sustained by the applicant in the course of her employment with the respondent is 9 February 2023.

At the time the applicant, Susie Albertson (Ms Albertson) sustained injury the subject of these proceedings, Ms Albertson was employed by the respondent, Westpac Banking Corporation (Westpac).
Westpac does not dispute Ms Albertson sustained primary psychological injury in the course of her employment with Westpac, with her employment being the main contributing factor to injury.
Ms Albertson claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) resulting from her injury. Ms Albertson's claim is declined, and she has been issued with notice in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

Both parties rely on s 16 of the 1987 Act. With reliance on s 16(1)(a)(ii) of the 1987 Act,

Ms Albertson alleges the deemed date of her injury is 21 May 2024 and with reliance on s (1)(a)(i) of the 1987 Act, Westpac alleges the deemed date of Ms Albertson's injury is

9 February 2023. 2. The parties agree that the following issues remain in dispute:

(a) the deemed date of Ms Albertson's injury, and

(b) percentage whole person impairment (WPI) resulting from the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Ms Albertson's claim came before me for preliminary conference on 29 January 2025 at which time Ms Albertson's application was by consent amended to plead a deemed date of injury of 21 May 2024, being the date of the letter under which Ms Albertson made her claim for permanent impairment compensation payable under s 66 of the 1987 Act.
While Westpac does not dispute Ms Albertson sustained primary psychological injury in the course of her employment with Westpac with her employment being the main contributing factor to injury, Westpac disputes the deemed date of injury and Westpac disputes the percentage permanent impairment resulting from the injury. With the dispute arising unresolved preliminary conference, the medical assessment that Ms Albertson was scheduled to attend on 7 February 2025 was vacated, and Ms Albertson's claim was listed for conciliation/arbitration hearing on 10 March 2025.
When Ms Albertson's claim came before me for conciliation/arbitration hearing on

10 March 2025, Mr McManamey of counsel appeared for Ms Albertson and Mr Doak of counsel appeared for Westpac. Counsel's instructing solicitors were present, and

Ms Albertson was present. 4. 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. 5. While the parties agreed the disputed issue of deemed date of injury could be determined 'on the papers' following receipt of written submissions, Ms Albertson sought in the first instance for the question of law relevant to the deemed date of injury to be referred to the President for determination. 6. The parties agreed Ms Albertson should attend assessment by a Medical Assessor for the purpose of assessment of WPI resulting from the injury with a provisional deemed date of injury of 9 February 2023. 7. The parties' written submissions relevant to (a) referral or otherwise of the question of law relevant to the deemed date of injury to the President for determination and (b) the disputed issue of deemed date of injury have now been received. 8. The Medical Assessment Certificate relevant to the Medical Assessor's assessment of

Ms Albertson on 16 May 2025 issued on 3 June 2025. The Medical Assessor assessed

Ms Albertson with 19% WPI resulting from the injury sustained in the course of her employment with Westpac. I understand an Application to Appeal Against the Decision of the Medical Assessment has recently been lodged.

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

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

(b) Application to Lodge Additional Documents dated 6 January 2025 and attached documents lodged by Westpac;

(c) Application to Lodge Additional Documents dated 24 January 2025 and attached documents lodged by Westpac, and

(d) Application to Lodge Additional Documents dated 4 March 2025 and attached documents lodged by Ms Albertson (with statement of Christian Sadler dated

3 March 2025 and statement of Songa Woodhouse dated 4 March 2025 removed).

Neither party sought to adduce oral evidence or cross examine any witnesses.

Mr McManamey of counsel and Mr Doak of counsel have provided written submissions. The parties have copies of counsels' submissions. I have carefully considered counsels' submissions, and I am grateful for the assistance provided to me in this matter.

Should the issue of the deemed date of Ms Albertson's injury be referred to the President for determination?

Section 351(1) of the 1998 Act provides that a question of law arising in proceedings under the 1987 Act, may with leave of the President, be referred by a presiding member for opinion of the Commission constituted by the President. Section 351(3) of the 1998 Act provides the President is not to grant leave for the referral of a question of law unless satisfied that the question involves a novel or complex question of law.
Division 13.1 of the Personal Injury Commission Rules 2021 and Procedural Direction WC3 (WC3) apply to a workers compensation question of law referral. WC3 provides that in determining whether or not to grant leave to refer a question of law, the President will consider, among other things, whether the question involves an interpretation of legislative provisions not previously considered at a presidential or appellate level.
Mr McManamey submitted that the issue I am required to determine in Ms Albertson's claim, being the deemed date of the injury she sustained in the course of her employment with Westpac is a question of law that is "both novel and complex" in that it is a recurring question of significance and importance which has yet to be determined by a presidential member, and as such should be referred to the President for determination.
Mr McManamey submitted that the recent Court of Appeal decision in Haddad v The Geo Group Australia Pty Ltd[1] was not a decision "about the date of injury in respect of a claim for permanent impairment". Mr McManamey submitted that in Haddad the Court of Appeal "made a number of comments that need to be reconciled."
Mr McManamey submitted that my determination of Ms Albertson's claim cannot be the subject of an appeal to a presidential member under s 352 of the 1998 Act because the amount in issue on appeal is not at least 20% of the amount that can be awarded by my determination, and therefore without referral under s 351 of the 1998 Act, the issue, which "is one of importance" cannot be determined by a presidential member.
Mr Doak submitted that the issue I am required to determine in Ms Albertson's claim, being the deemed date of the injury she sustained in the course of her employment with Westpac is a question of law that is neither novel nor complex. Mr Doak referred to me Dimmock v State of New South Wales[2] and I have noted with interest comment by Sheahan J:

"In the new dispute resolution regime applying to this State, it is incumbent upon the Commission's Arbitrators, who deal with a wide range of disputes, to determine all cases any questions of jurisdiction, to make findings of fact, to interpret relevant statutory provisions (not just those of the NSW Workers Compensation legislation), to determine the applicability of such provision to the facts so found and then, in appropriate instances, to apply them.

The Question of Law procedure envisaged by s 351 is not designed for the determination of matters such as whether a particular Applicant in a particular set of circumstances can successfully argue that the Commission has jurisdiction to deal with a claim for compensation, or that a particular piece of legislation might apply to the facts of the case.

The fact that the determination of such issues in particular cases may be regarded as difficult or 'complex' or indeed may be 'novel' to particular decision-makers, is not sufficient to attract the provisions of s 351. They fall for determination by the Arbitrator assigned the particular case and cannot be 'abdicated' to the President pursuant to s 351.

Once all the Arbitrator's functions are carried out, and a determination made by him or her of entitlements under the NSW Workers Compensation legislation, the aggrieved party to the proceedings may avail itself of the legislation's appeal provisions as appropriate."

Mr Doak submitted that any comment made by the Court of Appeal in Haddad which

Mr McManamey considered required reconciliation does not raise a question of law that is either novel or complex. Mr Doak further submitted the mere fact that my determination of Ms Albertson's claim cannot be the subject of appeal to a presidential member under s 352 of the 1998 Act does not render the question of law I am required to be determined either novel or complex. 2. I have carefully reviewed the legislative provisions and authorities referred to above, and I have carefully reviewed counsel's submissions. While I accept my determination of

Ms Albertson's claim cannot be the subject of an appeal to a presidential member under s 352 of the 1998 Act, I am inclined to agree with Mr Doak that the issue I am required to determine in Ms Albertson's claim, being the deemed date of the injury she sustained in the course of her employment with Westpac is a question of law that is neither novel nor complex in that a number of Members have considered the application of both s 15 and s 16 of the 1987 Act following Haddad without recourse to s 315 of the 1998 Act, and I should do the same. 3. I decline to refer the issue of the deemed date of Ms Albertson's injury to the President for determination because I am of the view that a number of Members have considered the application of the disease provisions in s 15 and/or s 16 of the 1987 Act following Haddad, including Principal Member Harris in Ellis v Dontarna Pty Ltd[3], Member Isaksen in Razmovski v NIB Health Funds Ltd[4] and Member Batchelor in Gray v United Disability Care Pty Ltd[5] and Boyd v Costco Wholesale Australia Pty Ltd[6], and I am not of the view the issue I am required to determine is either novel or complex. Furthermore, the application of the disease provisions in s 15 and/or s 16 of the 1987 Act following Haddad have also been considered by the President in Scalabrini Village Limited v Sanders[7] and a Deputy President in Razmovski v NIB Health Funds Ltd[8] with the Deputy President's decision in Razmovski 2 dealing with a claim for permanent impairment compensation, as is Ms Albertson's claim before me.

What is the deemed date of Ms Albertson's injury?

Section 16 of the 1987 Act relevantly provides:

"(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease -

(a) The injury shall, for the purposes of this Act, to 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."

Mr McManamey submitted that relevant to an injury in the nature of a disease injury such as that suffered by Ms Albertson "it is well established" that there can be separate dates for injury in respect of a claim for weekly compensation and in respect of a claim for permanent impairment compensation. In support of such submission, Mr McManamey usefully took me to the authorities of Alto Ford Pty Ltd v Antaw,[9] SAS Trustee Corporation v O'Keefe,[10] P&O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonzo,[11] Stone v Stannard Brothers Lauch Services Pty Ltd[12] and Inghams Enterprises Pty ltd v Thoroughgood.[13]
Mr McManamey was strident in disagreement with the position taken by Westpac that this "settled law" has been changed by the decision in Haddad, which purportedly clarified that the deemed date of injury relevant to an injury in the nature of a disease injury is typically the first date of an injured worker's incapacity resulting from the injury rather than the date of the claim, unless the injured suffered no incapacity for work resulting from the injury. In distinguishing the decision in Haddad from previous authority, the court held it was only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.
Mr McManamey submitted that the matter in Haddad involved a claim for medical or related treatment expenses, which commenced at the same time as the injured worker's incapacity resulting from the injury, and as Haddad did not involve a claim for permanent impairment compensation, any comment made by the court about claims for permanent impairment compensation are "only obiter."
Mr McManamey's submissions appear grounded in the concept that in a claim for permanent impairment compensation "the permanent impairment is an injury in itself and only comes into existence when the claim is made". Mr McManamey explained that typically, impairment will rarely exist at the first date of an injured worker's incapacity resulting from the injury and permanent impairment only arises once an injured worker has reached maximum medical improvement and has been assessed for the purposes of ascertaining the degree of permanent impairment resulting from the injury. Mr McManamey says such argument is supported by "clear findings" in Antaw, O'Keefe, Alfonzo and Stone.
The matter of Haddad has been considered in the Commission on a number of occasions in recent times.
While I accept that in Sanders the President left open the question of whether Haddad should be strictly applied in all instances, in Ellis Principal Member Harris subsequently relevantly held that the deeming provisions provided in s 16 of the 1987 are not to be construed so as to give rise to an alternative date of injury unless it can be established on the evidence that the injured worker has not suffered an incapacity for work resulting from the injury. The Principal Member noted he was obliged to follow Haddad and further noted Haddad's broad application. While Mr McManamy accepted Ellis has been followed by Member Isaksen in Razmovski 1 and Member Batchelor in Gray and Boyd, Mr McManamy expressed the view (with reasoning) that the Principal Member's determination in Ellis "is wrong and should not be followed".
However, of note is that Ellis remains "good law" and of significance I think is that in Razmovski 2 Deputy President Snell affirmed the approach taken by Member Isaksen when Member Isaksen applied Haddad to a claim for permanent impairment compensation and agreed it was necessary that the principles set out in Haddad were followed.
While I understand the argument put to me by Mr McManamey to be in essence that "the permanent impairment is an injury in itself and only comes into existence when the claim is made", which Mr McManamey said was argument not advanced and considered by the Deputy President in Razmovski 2, it remains the case that in Razmovski 2 the Deputy President affirmed the approach taken by Member Isaksen when he applied Haddad to an injured worker's claim for permanent impairment compensation, and I am of the view that I should do likewise.
I have carefully reviewed the legislative provisions and authorities referred to above, and I have carefully reviewed counsel's submissions. For the reasons discussed above, I accept the deemed date of Ms Albertson's claim for permanent impairment compensation payable under s 66 of the 1987 Act is 9 February 2023 as prescribed by s 16(1)(a)(i) of the 1987 Act, being the agreed date of incapacity suffered by Ms Albertson resulting from her injury.