Daghagheleh v Star Waterproofing Pty Ltd - [2025] NSWPIC 107

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Daghagheleh v Star Waterproofing Pty Ltd [2025] NSWPIC 107
APPLICANT:	Mahmoud Daghagheleh
RESPONDENT:	Star Waterproofing Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	24 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); primary psychological injury; one medical assessment; primary psychological injury and physical injury arising from same incident; separate assessment for threshold purpose; Tokich v Tokich Holdings Pty Ltd and Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork PTY LTD considered; Held – applicant sustained primary psychological injury; applicant entitled to referral to Medical Assessor for assessment of permanent impairment resulting from primary psychological injury not withstanding earlier assessment of physical injuries resulting from same incident.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a primary psychological injury in the course of his employment with the respondent on 25 February 2020. 2. The applicant also sustained a secondary psychological injury resulting from physical injuries sustained in the course of his employment with the respondent on 25 February 2020. 3. The prior determination of the applicant’s permanent impairment as a result of physical injuries sustained on 25 February 2020 does not prevent the referral of a medical dispute with respect to the extent of impairment resulting from primary psychological injury sustained on 25 February 2020 for threshold purposes. 4. The threshold dispute with respect to primary psychological injury is remitted to the President for referral to a Medical Assessor (MA) for determination of the permanent impairment arising from the following: Date of injury: 25 February 2020 Body systems referred: Psychiatric and psychological disorders Method of assessment: Whole Person Impairment 5. The documents to be referred to the MA to assist with their assessment are to include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Form 7 – Application for Assessment by a Medical Assesor and attachments; (c) Form 7A – Response to application for medical assessment and attachments; (d) Application to Lodge Additional Documents filed by the applicant dated 5 March 2025 and attachments, and (e) Application to Lodge Additional Documents filed by the respondent dated 18 March 2025 and attachments. A brief statement is attached setting out the Personal Injury Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant was employed by the respondent undertaking waterproofing work.
On 25 February 2020, in the course of his employment with the respondent, he was descending a ladder when the ladder lost its footing, and the ladder and the applicant fell approximately four meters to the ground.
As a result of the fall, it is accepted that the applicant sustained injuries to his lumbar spine, right upper extremity and post-surgical scarring. In 2022 the applicant commenced proceedings for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) with respect to these physical injuries.
The applicant was assessed by Medical Assessor McGroder who produced a Medical Assessment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 107
Decision Date: 24 March 2025

CaseChat Overview and Summary

In the case of Daghagheleh v Star Waterproofing Pty Ltd, the applicant, Mr. Daghagheleh, sought compensation for a primary psychological injury sustained as a result of a workplace incident. The respondent, Star Waterproofing Pty Ltd, contested the applicant’s claim, arguing that the psychological injury and any physical injuries arising from the same incident should be assessed together. The matter was heard in the Workers Compensation Magistrate Court of Victoria.

The central legal issue before the court was whether the applicant, who had previously been assessed for physical injuries arising from the same incident, was nonetheless entitled to a separate assessment for the primary psychological injury he sustained. The court was required to interpret the relevant statutory provisions, including the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998, in light of previous case law. Specifically, the court considered the applicability of the decisions in Tokich v Tokich Holdings Pty Ltd and Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork PTY LTD, which had established principles regarding the assessment of primary psychological injuries.

The court found that the applicant had sustained a primary psychological injury, distinct from the physical injuries previously assessed. The court held that separate assessments were required for threshold purposes, meaning that the psychological injury should be evaluated independently of the physical injuries. This interpretation was consistent with the statutory scheme and the principles set out in the cited cases. The court noted that the purpose of separate assessments is to ensure that each type of injury is properly evaluated and compensated. The court dismissed the respondent’s argument that the psychological injury should be assessed together with the physical injuries.

The court ordered that the applicant be referred to a Medical Assessor for an assessment of the permanent impairment resulting from the primary psychological injury, separate from the earlier assessment of the physical injuries. This decision ensures that the applicant’s psychological injury is appropriately recognised and compensated under the relevant legislation.

Orders