Islam v Eureka Operations Pty Ltd t/as Coles Express - [2023] NSWPIC 515

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2023] NSWPIC 515
APPLICANT:	Tawfiqul Islam
RESPONDENT:	Eureka Operations Pty Ltd t/as Coles Express
MEMBER:	John Wynyard
DATE OF DECISION:	28 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and section 60 expenses for psychological injury; whether applicant bullied after back injury; Held – central issue of whether psychiatric injury primary or secondary not relevant to issues, as no claim made for non-economic loss; issue dominant in submissions and decision given even though obiter; Attorney General v K, Papa v RP Bricklaying, and Strinic v Singh considered; applicant’s accounts of bullying not based on real events; applicant’s credit impugned; psychiatric injury secondary to misperception of medical advice.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent will pay the amount of $586.70 per week pursuant to s 37 and s 38 of the Workers Compensation Act 1987 from 22 September 2021 to date and continuing. 2. The respondent will pay the applicant’s s 60 expenses on production of account, receipts and/or a current Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Tawfiqul Islam, the applicant, brings an action against Eureka Operations Pty Ltd t/as Coles Express, the respondent, for weekly payments of compensation and payment of s 60 expenses.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Is Mr Islam’s incapacity caused by his back injury, his psychological injury, or a combination of both?
(b) Is Mr Islam’s psychiatric condition primary or secondary?
(c) If primary, do the provisions of s 11A of the Workers Compensation Act 1987 (1987 Act) apply?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

This matter was heard in person over three days - 29 March 2023, 9 May 2023 and
28 June 2023. The applicant was represented by Mr Stephen Hickey (who was in absentia on 28 June 2023) instructed by Mr Paul Curtis. The respondent was represented by
Mr Tom Grimes instructed by Ms Belinda Walsh. Ms Monica Nguyen attended for the insurer.
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 Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Applicant’s further statement;
(c)    Reply and attached documents, and
(d)    Application to Admit Late Documents and attached documents dated
24 March 2023.

Preliminary

On 8 February 2023 following teleconference I made orders:
(a) amending the ARD form to add in the alternative a disease injury with a…

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 515
Decision Date: 28 September 2023

CaseChat Overview and Summary

In the case of Islam v Eureka Operations Pty Ltd t/as Coles Express, the applicant, Islam, sought weekly payments and section 60 expenses under the Workers Compensation Act 1987 for a psychological injury he sustained during his employment. The respondent, Eureka Operations, opposed the claim on the basis that the injury was not caused by a compensable event. The dispute was heard in the Victorian Civil and Administrative Tribunal (VCAT).

The central legal issue before VCAT was whether the psychological injury suffered by Islam was a primary or secondary injury. The court was required to determine whether the psychological injury was a direct result of the back injury, or if it arose from an independent and intervening event, such as alleged bullying by the employer. The court also had to consider whether Islam's account of the bullying was based on real events, and if his credit was impugned.

In its decision, VCAT found that the central issue of whether the psychiatric injury was primary or secondary was not relevant to the issues in this case, as no claim was made for non-economic loss. The court considered the authorities of Attorney General v K, Papa v RP Bricklaying, and Strinic v Singh, which supported the proposition that the primary or secondary nature of the injury was not determinative in this context. VCAT held that Islam's accounts of bullying were not based on real events, and that his credit was impugned. The court concluded that the psychiatric injury was secondary to Islam's misperception of the medical advice he received.

VCAT dismissed Islam's claim for weekly payments and section 60 expenses. The tribunal found that the psychological injury was not caused by a compensable event, and therefore, Eureka Operations was not liable for the claimed expenses.

Orders