Fisk v Ausgrid Management Pty Ltd - [2022] NSWPIC 456

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fisk v Ausgrid Management Pty Ltd [2022] NSWPIC 456
APPLICANT:	Neil Fisk
RESPONDENT:	Ausgrid Management Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	17 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim for disputed primary psychological injury where no dispute regarding existence of a secondary psychological injury; lay and medical evidence considered; Greater Taree City Council v Moore, Kooragang Cement Pty Limited v Bates and AV v AW considered; Held — the applicant suffered primary psychological injury; referred to Medical Assessor for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered primary psychological injury arising out of or in the course of his employment with the respondent, deemed to have happened on 27 January 2016. 2. Matter remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment in respect of primary psychological injury deemed to have happened on 27 January 2016. Brief to the Medical Assessor is to include the Application and attached documents, Reply and attached documents, and Application to Admit Late Documents dated 6 June 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an Application to Resolve a Dispute by Neil Fisk (the applicant) claiming lump sum compensation in respect of primary psychological injury deemed to have happened on
27 January 2016 arising out of or in the course of his employment with Ausgrid Management Pty Ltd (the respondent).
The respondent issued section 78 notices dated 3 January 2020, 3 September 2020,
30 August 2021 and 6 December 2021. Issues raised included a section 11A defence. However, at the conciliation/arbitration hearing of this matter the section 11A defence was abandoned and psychological injury was not disputed. The only issue in dispute was whether the applicant had sustained a primary psychological injury.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 16 June 2022, the applicant was represented by Mr P Perry of counsel, instructed by Mr Dous, solicitor, and the respondent by Mr McMahon of counsel, instructed by Ms Beattie, solicitor. The respondent made oral submissions at the hearing. Following the hearing the applicant gave written submissions and the respondent made written submissions in reply.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admi Late Documents dated 6 June 2022, and attached documents.

Oral…

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: [2022] NSWPIC 456
Decision Date: 17 August 2022

CaseChat Overview and Summary

In the case of Fisk v Ausgrid Management Pty Ltd, the applicant, Fisk, brought a claim for a lump sum payment relating to a disputed primary psychological injury, with no contention over the existence of a secondary psychological injury. The dispute was heard by the Workers Compensation Commission of New South Wales. The central issue for the court was whether Fisk had indeed suffered a primary psychological injury as a result of the circumstances surrounding his employment, and if so, the extent of this injury and the appropriate compensation.

The court examined both lay and medical evidence presented by the parties. The case hinged on the interpretation of the psychological impact on Fisk, considering precedents such as Greater Taree City Council v Moore, Kooragang Cement Pty Limited v Bates, and AV v AW. These cases provided the court with guidance on the assessment of psychological injuries and the weight to be given to different types of evidence. The court had to determine the credibility and weight of the lay and medical evidence, and assess whether the injury claimed by Fisk met the threshold for a compensable primary psychological injury.

After careful consideration of the evidence and the applicable legal principles, the court concluded that Fisk had indeed suffered a primary psychological injury. The court found that the evidence, when considered in its entirety, supported the applicant's claim. Consequently, the court referred the matter to a Medical Assessor for a comprehensive assessment of the extent of any permanent impairment resulting from the injury. This assessment would form the basis for determining the appropriate level of compensation.

The final orders of the court included a direction for a Medical Assessor to evaluate the permanent impairment resulting from Fisk's primary psychological injury, with a view to calculating and awarding the appropriate lump sum compensation. This decision ensures that Fisk's claim for a primary psychological injury is thoroughly assessed and addressed, in accordance with the relevant legal standards and precedents.

Orders