Hadiyan v Millennium Hi-Tech Group Pty Ltd - [2023] NSWPIC 619

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hadiyan v Millennium Hi-Tech Group Pty Ltd [2023] NSWPIC 619
APPLICANT:	Shariyar Hadiyan
RESPONDENT:	Millennium Hi-Tech Group Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	20 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of physical and primary psychological injuries arising from an assault; whether injury and/or consequential at bilateral shoulders; delay in reporting symptoms of more than two years; mechanism of injury unexplained; alternative explanation of symptoms found by respondent’s expert; Held – the applicant failed to discharge his onus of establishing injury or consequential condition to the shoulders; as accepted physical injuries did not exceed 10% whole person impairment threshold; only primary psychological injury to be referred to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent with respect to the allegation of injury to the left and right shoulders on 22 September 2019. 2. Award for the respondent with respect to the allegation of consequential conditions affecting the left and right shoulders as a result of the injury on 22 September 2019. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 22 September 2019 Body system Primary psychological injury Method: Whole Person Impairment 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments. 5. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in respect of the accepted injuries and/or conditions in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Shariyar Hadiyan (the applicant) was employed as a security guard by Millennium Hi-Tech Group Pty Ltd (the respondent).
On 22 September 2019, the applicant was in the course of his employment with the respondent when he was assaulted. The applicant claims to have suffered a primary psychological injury in that event as well as physical injuries.
Claims for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) were made in respect of the primary psychological injury and physical injuries.
In relation to the physical injuries, the applicant relied upon an assessment of 18% whole person impairment (WPI) of the cervical spine and bilateral shoulders made by Dr James Bodel. Dr Bodel assessed the applicant as having 7% WPI of the cervical spine and 6% WPI at each shoulder as a result of the injury.
The respondent disputed liability for any injury or consequential condition affecting the shoulders in dispute notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 17 May 2022 and, following internal review, on 5 June 2023.
As neither Dr Bodel, nor the respondent’s Independent Medical Examiner, had assessed the cervical spine at greater than 10% WPI, liability to pay lump…

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 619
Decision Date: 20 November 2023

CaseChat Overview and Summary

The case of Hadiyan v Millennium Hi-Tech Group Pty Ltd involved a claim for lump sum compensation for physical and primary psychological injuries sustained during an assault. The applicant sought damages from the respondent employer for the injuries suffered. The dispute was heard in the workers compensation tribunal.

The central legal issue before the tribunal was whether the applicant had successfully established that the injuries claimed were attributable to the assault and met the necessary criteria for compensation. This included determining whether the injuries to the shoulders were direct or consequential, and if they met the required threshold of 10% whole person impairment. Additionally, the tribunal had to consider the impact of the delay in reporting symptoms and the lack of a clear mechanism for the injuries.

In its decision, the tribunal found that the applicant had not discharged the burden of proving that the injuries or the consequential condition affected the shoulders. The tribunal noted that the accepted physical injuries did not exceed the 10% whole person impairment threshold. Furthermore, the tribunal accepted the alternative explanation provided by the respondent’s expert regarding the applicant's symptoms. Consequently, the tribunal ruled that only the primary psychological injury would be referred to a Medical Assessor for assessment.

The tribunal concluded that the applicant had not met the necessary criteria to establish a compensable injury in respect of the shoulders. The final order of the tribunal was that the applicant's claim for compensation in respect of the shoulder injuries was dismissed.

Orders