Workers compensation case note
Asbury v Donhad Pty Ltd [2026] NSWPIC 194: when separate knee injuries can be aggregated
Asbury v Donhad Pty Ltd [2026] NSWPIC 194 is an important NSW workers compensation decision for workers dealing with multiple injuries to the same body part, especially where the insurer is trying to keep those injuries separate to reduce the final section 66 lump sum result.
Key takeaway
Two injuries, one pathology, bigger lump sum outcome.
The Commission held that the worker’s two separate right knee injuries caused the same pathology, so the impairments could be assessed together under section 322(2). That pushed the worker to a higher combined WPI result and a better compensation outcome.
Decision snapshot
- • two accepted right knee injuries in 2003
- • issue: same pathology under s 322(2)
- • result: impairments aggregated
- • worker succeeded and obtained a higher further lump sum result
What happened?
Mr Asbury had two accepted right knee injuries in 2003 while working for Donhad Pty Ltd. One was a deemed injury from the nature and conditions of employment on 21 October 2003. The second was a specific slip-and-fall injury on 22 December 2003. The injuries occurred against a background of earlier knee problems and previous surgery.
Earlier proceedings had already dealt with permanent impairment and weekly benefits over many years. The later dispute was narrower but financially important: whether the right knee impairments from the two injuries could be aggregated for the purpose of further lump sum compensation.
Why aggregation mattered
It was agreed that if the right knee impairments were aggregated, the worker would reach a combined 26% whole person impairment and be entitled to further lump sum compensation of $32,500 after deducting the $10,000 already paid in 2005.
If the impairments were kept separate, the worker’s further entitlement would be lower at $28,750. So the aggregation fight was not a technical side issue. It directly affected the amount of compensation payable.
The legal question
The key issue was whether the impairments to the right knee resulting from the October 2003 injury and the December 2003 injury could be assessed together under section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998.
The worker argued that both injuries aggravated the same underlying osteoarthritic condition at the knee, so the pathology was the same. The respondent argued there was not enough evidence to make that finding and pointed to different injury mechanisms, poor contemporaneous records, and earlier separate assessment history.
What the Commission found
Member Rachel Homan found that the two injuries caused the same pathology. That meant the impairments could be assessed together under section 322(2). The Commission therefore made an award in favour of the applicant based on the aggregated right knee impairment outcome.
A practical point from the reasons is that the Commission was prepared to look beyond the fact that the injuries happened on different dates. The real question was whether the pathology caused by those injuries was, in substance, the same.
Why this matters for injured workers
Insurers often prefer to separate injuries where doing so lowers the final whole person impairment result. That can mean less compensation under section 66.
This case shows that if two injuries to the same body part are really producing the same pathology, aggregation may still be available. That is especially important in older claims, repeated knee or shoulder injuries, or cases where degeneration and aggravation overlap.
Practical takeaway
If you have had more than one injury to the same body part, do not assume the insurer’s first way of splitting them is the final legal answer. The right question is whether the injuries caused the same pathology and whether aggregation should be argued properly.
If your claim is already moving into a permanent impairment or further lump sum dispute, the key internal starting points are the lump sum WPI service guide, the section 66 guide, and the broader workers compensation service hub.
AustLII source
Read the full decision here: Asbury v Donhad Pty Ltd [2026] NSWPIC 194.
Frequently asked questions
What was the key issue in Asbury v Donhad?
The main issue was whether impairment from two separate right knee injuries could be aggregated under section 322(2) of the 1998 Act because they caused the same pathology.
Why did aggregation matter so much?
Because aggregation increased the combined whole person impairment and improved the worker’s further lump sum compensation outcome. Without aggregation, the worker would have recovered less.
Does every worker with two injuries to the same body part get aggregation?
No. The result depends on the evidence. The worker still has to show the legal test is met, including whether the injuries caused the same pathology within the meaning of the authorities and section 322(2).
Why should workers care about this case?
Because insurers often try to keep injuries separate where doing so lowers the whole person impairment outcome. This case shows that the aggregation question can materially affect section 66 lump sum compensation.