Gray v United Disability Care Pty Ltd - [2024] NSWPIC 648

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gray v United Disability Care Pty Ltd [2024] NSWPIC 648
APPLICANT:	Sharon Mariee Gray
RESPONDENT:	United Disability Care Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	22 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; the applicant conceded that she had suffered incapacity from a date earlier than the date on which the claim for lump sum compensation was made; however, the applicant claimed that the date of injury for the purpose of the lump sum claim was the date on which such claim was made; the respondent claimed that the date of injury was the earlier date of incapacity, relying on what the Court of Appeal decided in Haddad v The GEO Group Australia Pty Ltd (Haddad), and members of the Commission decided in Ellis v Dontarna Pty Ltd and Razmovski v NIB Health Funds Ltd; earlier authorities, including Alto Ford Ltd v Antaw, SAS Trustee v O’Keefe, and Inghams Enterprises Pty Ltd v Thoroughgood (Thoroughgood) referred to; Held – consistent with Haddad and Thoroughgood, the date of incapacity was the correct date of injury for the purpose of the claim for lump sum compensation; respondent ordered to pay lump sum compensation having regard to the earlier date of incapacity.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent in or about October 2021. 2. The respondent is to pay the applicant $60,450 compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 as a result of such injury.

STATEMENT OF REASONS

BACKGROUND

Sharon Maree Gray (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for psychological injury arising out of or in the course of her employment as a support worker for United Disability Care Pty Ltd (the respondent), deemed to have occurred on 6 February 2024.
The respondent does not dispute that the applicant sustained psychological injury. The dispute in the current proceedings is as to the date of such injury, having regard to the recent Court of Appeal decision in Haddad v The Geo Group Australia Pty Ltd,[1] and a decision of Principal Member Harris in Ellis v Dontarna Pty Ltd.[2]
[1] [2024] NSWCA 135 (Haddad).
[2] [2024] NSWPIC 513 (Ellis).
The applicant was independently medically examined by medico-legal experts appointed by the applicant and the respondent who both agreed that she had sustained 22% whole person impairment (WPI) as a result of psychological injury. There is no issue as to that degree of WPI.
The applicant made a claim for lump sum compensation by way of letter dated 6 February 2024 supported by a report of Dr Abdal Khan dated 15 September 2023.[3] The applicant asserts that the date of that letter, being the…

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 Gray v United Disability Care Pty Ltd

Details

AGLC: Gray v United Disability Care Pty Ltd [2024] NSWPIC 648
Case: [2024] NSWPIC 648
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Gray v United Disability Care Pty Ltd involved a claim for lump sum compensation under the Workers Compensation Act 1987. The applicant, Gray, conceded that she had suffered incapacity from a date earlier than the date on which she made her claim for lump sum compensation. However, she argued that the date of injury for the purpose of her claim was the date on which the claim was made. In contrast, the respondent, United Disability Care Pty Ltd, contended that the correct date of injury was the earlier date of incapacity, relying on several authorities including the decision of the Court of Appeal in Haddad v The GEO Group Australia Pty Ltd and several decisions of members of the Commission.

The legal issues before the court were whether the date of incapacity or the date of the claim for lump sum compensation was the correct date of injury. This involved an interpretation of section 66 of the Workers Compensation Act 1987 and an analysis of relevant case law. The court had to determine the applicability of the decision in Haddad and other authorities, such as Ellis v Dontarna Pty Ltd and Razmovski v NIB Health Funds Ltd, as well as earlier decisions like Alto Ford Ltd v Antaw, SAS Trustee v O’Keefe, and Inghams Enterprises Pty Ltd v Thoroughgood.

The court found that the date of incapacity was the correct date of injury, consistent with the reasoning in Haddad and Thoroughgood. This meant that the respondent was liable for lump sum compensation calculated from the earlier date of incapacity. The court held that the applicant's concession regarding the earlier date of incapacity confirmed that this was indeed the date of injury for the purpose of the claim. The respondent was ordered to pay the lump sum compensation taking into account the earlier date of incapacity.

Orders