PIRS -Detangling the effects of primary and secondary psychological injuries

A primary psychological injury arises directly from a workplace incident/accident.

A secondary psychological injury arises as a consequence of, or secondary to, a physical injury.

Lump sum compensation is only payable for a primary psychological injury resulting in at least 15% whole person impairment (WPI).[1]

The Permanent Injury Rating Scales (PIRS) are assessed to calculate WPI by evaluating functional impairment across the following 6 categories:

1. Self-care and personal hygiene.
2. Social and recreational activities.
3. Travel.
4. Social functioning (relationships).
5. Concentration, persistence and pace.
6. Employability.

Each category contains classes ranging from 1 to 5, based upon severity.

A lump sum compensation claim for primary psychological injury may involve a secondary psychological injury. For example, a worker sustains physical injury and primary psychological injury (PTSD) during a traumatic workplace incident. The worker then develops secondary psychological injury (adjustment disorder) because of pain and the physical limitations caused by the physical injury.

Section 65A(2) of the 1987 Act provides:

In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

The deduction for secondary psychological injury is not a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act).

Deduction for secondary psychological injury where its effects can be isolated

In Mercy Connect Limited v Kiely,[2] (Kiely No 2) Harrison AsJ set out a two-step process by which a Medical Assessor could apply section 65A(2) of the 1987 Act, as follows:

1. Calculate the entire WPI that is, for both primary and secondary injuries; and
2. Deduct the impairment resulting from the secondary psychological injury.

Deduction for secondary psychological injury where its effects cannot be isolated

The Medical Appeal Panel (MAP) in the recent decision of ETM Projects Pty Limited (In liquidation) v Gregorgiou[3] (EMT Projects) found that the two-step approach, applied in Kiely No 2, was only applicable if there can be a ‘disentanglement’ of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury.

The MAP found it only possible to isolate impairment from the secondary psychological injury on the PIRS category of employability. At [47], the MAP reasoned ‘that to disregard the impairment and symptoms from the secondary psychological injury would result in disregarding the impairment and symptoms from the primary psychological injury. Such an outcome would be contrary to the beneficial purpose of the legislation’.

The MAP therefore:

1. Took the MA’s PIRS scores for total impairment from the primary and secondary injury being: 3, 3, 3, 3, 3, 5, and median of 3, equating to 26% WPI, under the table conversion table.[4]
2. Calculated the impact of the secondary psychological injury on the PIRS category of employability, as follows: 1, 1, 1, 1, 1, 5. The aggregate of 10, with the median score of 1, equating to 2% WPI under the applicable conversion table.[5]
3. Subtracted the 2% WPI for the secondary psychological injury from the 26% WPI calculated for total impairment, resulting in new MAC issued for 24% WPI.

Take home messages

Evidence on the level of functioning before and after a secondary injury can assist an assessor to distinguish between the effects of the primary and secondary psychological injury.

Without this, the probative value of an IME report/opinion may be called into question, leading to delays, increased costs and ultimately impact whether WPI thresholds including for lump sum compensation and work injury damages are reached.

Contributor: Angela Vangdahl

[1]Workers Compensation Act 1987 (NSW) ss 65A(1), (3).

[2][2018] NSWSC 1421.

[3][2024] NSWPICMP 45.

[4]Table 11.7 of the SIRA Guidelines for the Evaluation of Permanent Impairment.

[5]The PIRS scores for the secondary psychological injury were assessed as class rating 1, Table 11.12 of the SIRA Guidelines for the categories that could not be isolated. Class rating 1 being ‘No deficit’ or equivalent.