Ivanovic v Mullungeen Pty Ltd - [2024] NSWPIC 56

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ivanovic v Mullungeen Pty Ltd [2024] NSWPIC 56
APPLICANT:	Stefan Ivanovic
RESPONDENT:	Mullungeen Pty Limited
MEMBER:	Paul Sweeney
DATE OF DECISION:	12 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 for a primary psychological injury; common ground that worker suffers from a somatic symptom disorder, a secondary psychological injury, and a major depressive disorder; worker argues that the latter condition is a primary psychological injury; employer argues that as it came on several months after the injurious incident in response to severe pain and disability it is also a secondary psychological injury and is not compensable by reason of section 65(2); Romanous Constructions Pty Limited v Arsenovic and JB Metropolitan Distributors Pty Limited v Kitanoski considered; Held – that the major depressive disorder caused by both reaction to the injurious event and by reaction to pain and disability.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffers from a primary psychological injury as a result of injury on 4 April 2019 namely major depressive disorder. 2. The applicant also suffers from a secondary psychological injury namely a somatic symptom disorder. 3. Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as a result of a primary psychological injury on 4 April 2019 bearing in mind the secondary psychological condition. 4. Medical Assessor to have access to the Application to Resolve a Dispute, the Reply, and a copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

Stefan Ivanovic (the applicant) was formerly employed by Mullungeen Pty Limited (the respondent) at the Orchard Hotel, Chatswood where his duties included taking food to customers at their table.
On 4 April 2019, the applicant slipped and fell while descending stairs at the hotel. The applicant has complained of debilitating back and leg pain, which have been resistant to treatment since the injury. He has been treated by a neurologist, an occupational physician, a psychiatrist, and several pain specialists who have diagnosed a chronic pain syndrome superimposed on the applicant’s physical injury. He has been unable to return to work.
It is common ground that the applicant suffers from a secondary psychological injury which can be categorised as a somatic symptom disorder.
The applicant alleges, however, that he also suffers from a primary psychological injury in the form of a major depressive disorder with panic attacks. The respondent disputes the diagnosis of the primary psychological injury. It does so on the basis of the opinion of Dr Dayalan, a psychiatrist who opined that the applicant’s symptoms “were consequent to the persistent pain and significant impairment in functioning”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for a primary psychological injury.
When the matter came on for a conciliation conference and arbitration hearing in the Personal…

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

AGLC: Ivanovic v Mullungeen Pty Ltd [2024] NSWPIC 56
Case: [2024] NSWPIC 56
Decision Date: 12 February 2024

CaseChat Overview and Summary

In the case of Ivanovic v Mullungeen Pty Ltd, the primary dispute involves a claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987. The worker, Ivanovic, alleged that he suffered from a somatic symptom disorder, a secondary psychological injury, and a major depressive disorder. Ivanovic argued that the major depressive disorder was a primary psychological injury, while the employer contended that the disorder was a secondary psychological injury, occurring several months after the initial injurious incident in response to severe pain and disability. The employer further argued that the condition was not compensable under section 65(2) of the Act.

The legal issues the court was required to decide centred on whether the major depressive disorder was a primary psychological injury or a secondary one, and whether it was compensable under the relevant provisions of the Workers Compensation Act 1987. The court considered the distinctions between primary and secondary psychological injuries, as well as the implications of section 65(2) on the compensability of secondary psychological injuries. The court also examined the cases of Romanous Constructions Pty Limited v Arsenovic and JB Metropolitan Distributors Pty Limited v Kitanoski for guidance on the application of these principles.

The court determined that the major depressive disorder was caused by both the reaction to the injurious event and the reaction to the pain and disability that followed. It held that the disorder was not solely attributable to the initial injurious event, but was also influenced by the worker's experience of pain and disability. Consequently, the major depressive disorder was classified as a secondary psychological injury. Given that the condition arose in response to the worker's severe pain and disability, it was held to be compensable under section 65(2) of the Workers Compensation Act 1987.

No specific final orders were mentioned in the text, but it is likely that the court would make an order that reflects the findings regarding the nature of the psychological injuries and their compensability under the Act.

Orders