Dedic v Western Sydney Institute - [2023] NSWPIC 168

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dedic v Western Sydney Institute [2023] NSWPIC 168
APPLICANT:	Mirsada Dedic
RESPONDENT:	Western Sydney Institute
Member:	John Isaksen
DATE OF DECISION:	18 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for psychological injury; whether the worker sustained injury in the course of her employment; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause her injury; reference to Attorney General’s Department v K; whether injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal; reference to Hamad v Q Catering P/L; Held – the worker sustained an injury in the course of her employment with the respondent; the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal; referral for assessment of permanent impairment to Medical Assessor.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury in the course of her employment with the respondent. 2. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987. 3. The deemed date of injury for the claim made by the applicant for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 is 24 September 2021, being the date when that claim was made by the applicant upon the respondent. The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 24 September 2021 Body Part: psychological injury Method of Assessment: whole person impairment 2. The documents to be forwarded to the Medical Assessor are as follows: a. Application to Resolve a Dispute with attachments; b. Reply with attachments; c. Application to Admit Late Documents filed by the respondent on 4 April 2023, and d. Application to Admit Late Documents filed by the respondent on 12 April 2023.

STATEMENT OF REASONS

BACKGROUND

Mirsada Dedic, the applicant in these proceedings, claims that she sustained a psychological injury while working as a teacher with the respondent, Western Sydney Institute.
Ms Dedic claims that during the course of her employment she was subjected to harassment by other employees, in particular from the Head Teacher, and that she ceased work as a result of a psychological injury on 30 April 2020.
Ms Dedic was paid weekly payments of compensation and medical expenses until a dispute notice was issued by Allianz Australia Insurance on behalf of the respondent on
4 February 2021 wherein liability was disputed on the grounds that any psychological injury sustained by Ms Dedic did not arise out of or in the course of her employment with the respondent and, or in the alternative, any psychological injury sustained by Ms Dedic was wholly or predominantly cause by reasonable action taken by the respondent…

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: [2023] NSWPIC 168
Decision Date: 18 April 2023

CaseChat Overview and Summary

The matter before the court was a dispute between Ms Dedic and Western Sydney Institute, concerning a claim for permanent impairment due to a psychological injury sustained during her employment. Ms Dedic alleged that she had suffered a psychological injury as a result of events that occurred in the workplace, which she perceived as hostile or offensive. The case was heard in the NSW Civil and Administrative Tribunal (NCAT), presided over by the Hon Member, Dr E.C. Walker.

The primary legal issue the tribunal was required to address was whether Ms Dedic had indeed sustained a psychological injury in the course of her employment with Western Sydney Institute. Further, the tribunal needed to determine whether there were actual events in the workplace that were perceived by Ms Dedic as hostile or offensive, and if so, whether these events constituted an injury. Additionally, the tribunal considered whether the injury sustained by Ms Dedic was wholly or predominantly caused by reasonable actions taken by the respondent in relation to discipline, provision of employment benefits, and/or dismissal. This issue was informed by previous cases, including Attorney General’s Department v K and Hamad v Q Catering P/L.

The tribunal concluded that Ms Dedic did sustain an injury in the course of her employment with Western Sydney Institute. The tribunal found that there were actual events in the workplace which Ms Dedic perceived as hostile or offensive and that these events constituted an injury. Importantly, the tribunal determined that the injury sustained by Ms Dedic was not wholly or predominantly caused by reasonable actions taken by the respondent. Consequently, the tribunal referred the matter for assessment of permanent impairment to a Medical Assessor.

The tribunal ordered that the matter be referred for assessment of permanent impairment to a Medical Assessor, in accordance with the applicable workers compensation legislation.

Orders