Florance v Star Entertainment Group - [2023] NSWPIC 662

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Florance v Star Entertainment Group [2023] NSWPIC 662
APPLICANT:	Naomi Catherine Florance
RESPONDENT:	The Star Entertainment Group Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	11 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum claim; primary psychological injury conceded; disputed claim for consequential gastrointestinal condition; issue as to application of section 65A as to whether lump sum compensation can be payable for both a primary psychological injury and consequential physical condition; Bell v The Mining Pty Ltd, Judge v Workforce International (Office Services) Pty Ltd and Tagicaki v Everwilling Cranes Pty Ltd followed; Held – award for the respondent in relation to the alleged gastrointestinal condition; the lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment for psychological injury with the deemed date of injury of 11 July 2016.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to the alleged gastrointestinal condition. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 11 July 2016 Body system: psychological. 3. The documents to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and annexures and the Application to Admit Late Documents attaching the Reply and annexures.

STATEMENT OF REASONS

BACKGROUND

Naomi Catherine Florance, the applicant, was employed with the respondent, The Star Entertainment Group Limited, as a croupier from about 2006. In the Application to Resolve a Dispute (ARD) the date of injury is pleaded as 11 July 2016. The injury description states:
“Our client sustained psychological/psychiatric injuries on 11 July 2016 from bullying and harassment during her employment with Star Entertainment Group. Due to stress and medication taken to treat her psychological injury, our client developed a consequential gastro-intestinal injury.”
The compensation sought in these proceedings relates to a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 24% whole person impairment (WPI) comprising of 3% for gastrointestinal condition as assessed by Dr Greenberg and the balance for psychological injury as assessed by Dr Rastogi.
The claims for s 60 expenses were withdrawn because at the present time they are preluded due to the operation of s 59A of the 1987 Act.
The issues in dispute are:
(a) whether the applicant has a gastrointestinal condition as a result of the agreed primary psychological injury, and
(b) if so, whether for the purposes of the lump sum claim any impairment from the gastrointestinal condition can be combined with that of the primary psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation conference/arbitration hearing before me on
11 September 2023. Mr Bill Carney, counsel, instructed by Ms Lazaris, solicitor, appeared for Ms Florance, who was present. Mr David Baran, counsel, instructed by Mr Van der Hout, solicitor, appeared for 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.

Continue reading Florance v Star Entertainment Group

Details

AGLC: Florance v Star Entertainment Group [2023] NSWPIC 662
Case: [2023] NSWPIC 662
Decision Date: 11 December 2023

CaseChat Overview and Summary

The parties in the case were Florance, the appellant, and Star Entertainment Group, the respondent. The dispute revolved around a claim for workers' compensation, particularly focusing on the entitlement to a lump sum for a primary psychological injury and a consequential gastrointestinal condition. The matter was heard in the District Court of New South Wales.

The central legal issue the court had to resolve was whether the lump sum compensation under the Workers Compensation Act 1987 could be awarded for both a primary psychological injury and a physical condition that arose as a consequence of that injury. This issue was considered in light of previous cases such as Bell v The Mining Pty Ltd, Judge v Workforce International (Office Services) Pty Ltd, and Tagicaki v Everwilling Cranes Pty Ltd. The court had to determine if section 65A of the Act permitted such dual compensation.

The court examined the statutory provisions and found that the lump sum compensation could indeed be awarded for both the primary psychological injury and the consequential physical condition. However, the court ruled that the lump sum claim concerning the alleged gastrointestinal condition should not be awarded to the appellant. Instead, the matter was to be remitted to the President for referral to a Medical Assessor to evaluate the permanent impairment for the psychological injury. The deemed date of injury was set as 11 July 2016.

Following the court’s reasoning, the final orders included the remittal of the lump sum claim to the President for the reassessment of the psychological impairment and the exclusion of the gastrointestinal condition from the compensation awarded.

Orders