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A common issue facing Australian workers in labour intense roles are repeated injuries affecting the same body parts over many years of work. In the context of NSW Workers Compensation Claims, the issue then arises, in the course of Section 66 lump sum compensation claims, as to whether permanent impairment from similar injuries during different injurious events can be combined to produce a higher overall Whole Person Impairment.
In Asbury v Donhad Pty Ltd [2026] NSWPIC 194, the NSW Personal Injury Commission (‘PIC’) recently considered whether a worker’s two separate right knee injuries resulting in the exact same pathology could be aggregated and assessed together under Section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (‘WIMA 1998’).
The Applicant (Mr Asbury) suffered two injuries involving the same pathology:
- 21 Oct 2003; and
- 22 Dec 2003.
The Applicant had also suffered prior knee injuries requiring surgery.
Issue in the proceedings
- Can impairments be combined if they result from “the same injury” (i.e. the same pathology) even though they were caused by different incidents under Section 322 of the WIMA 1998?
Section 322 provides:
“(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
Held
Applying the decision in Department of Juvenile Justice v Edmed,[1] the PIC determined that a worker’s two separate right knee injuries resulted in the exact same pathology and therefore the impairments could be aggregated and assessed together under Section 322 of the WIMA 1998.
Key Takeaway
Even where injuries arise from separate events, impairments can be aggregated if they produce the same underlying pathology—especially where both are aggravations of a pre-existing condition.
Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been drafted with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.
This article was published on 21 of May by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au).
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