Under the Workers Compensation Act 1987 (NSW)
("WCA"), workers may be able to recover
compensation if they suffer a personal injury or a disease
So, what's the difference between a personal injury and a
This question was considered in a recent decision of a
Presidential member of the NSW Workers Compensation Commission:
Ky v Blue Leaf Food Group Pty Ltd.
Ly Meng Ky worked as a picker, packer and forklift driver with
two different employers. He gradually developed increasing
stiffness in his right shoulder.
Mr Ky's condition was variously diagnosed as rotator cuff
damage and impingement syndrome secondary to tendinosis and
After being retrenched by his last employer in early 2015, Mr Ky
claimed lump sum compensation against his first, earlier
That employer, Blue Leaf Food, argued it was not liable to pay
compensation because Mr Ky had suffered a disease injury and not a
personal injury. On that basis Blue Leaf argued Mr Ky's second
(last) employer was liable for the shoulder injury (by operation of
the deeming provisions in section 15 or 16 WCA).
If Mr Ky was found to have suffered a personal injury, Blue Leaf
would be liable. If he was found to have suffered a disease injury
it would not be liable.
An arbitrator in the Commission concluded Mr Ky's shoulder
condition was a disease and that Blue Leaf was not liable because
it was not the last causative employer.
Mr Ky appealed against that decision to a Presidential member of
What is an injury?
Quoting at length from a recent High Court decision,1
Deputy President Snell held:
To be a "personal injury", an injury does not have to
be "sudden" – it can develop over a period of
However, to be a personal injury there has to be some kind of
identifiable physiological change.
This physiological change must be different from the natural
progression of an underlying disease.
Because the Arbitrator had not applied these principles, the
case was sent back for re-hearing.
There have been cases where the gradual development of
conditions such as those suffered by Mr Ky have been classified as
diseases. The fact that a condition has developed over time has
been a factor in reaching that conclusion.
However, it is now clear that the mere fact a condition develops
over time may not prevent it from being classified as a personal
injury for workers compensation purposes.
Why does it matter?
The tests for liability for "personal injury" and
"disease injury" under the WCA differ. So is the
law which tells us when an injury occurs, or is deemed to occur.
Being able to differentiate between personal injury and disease
injury can be important in determining whether an employer is
liable for compensation.
1Military Rehabilitation and Compensation
Commission v May  HCA 19.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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