Jack v Arbor Pride Pty Ltd - [2021] NSWPIC 194

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jack v Arbor Pride Pty Ltd [2021] NSWPIC 194
APPLICANT:	Robin Jack
RESPONDENT:	Arbor Pride Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	18 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation for permanent impairment; worker suffered crush injury to right hand and subsequent amputation of the tip of one finger; no dispute as to physical injury; worker also claimed bullying and unfair treatment on return to work following surgery; dispute as to whether worker suffered primary psychological injury; Held- finding that the totality of the evidence supported the conclusion that the worker suffered a primary psychological injury; worker may have also suffered a secondary psychological injury but if so it was not compensable; matter remitted to the President for referral to a medical assessor for assessment of whole person impairment as a result of primary psychological injury.
DETERMINATIONS MADE:	1. The applicant sustained a primary psychological injury arising out of or in the course of his employment with the respondent on 10 February 2017. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of whole person impairment due to a primary psychological injury sustained on 10 February 2017. 3. The documents to be reviewed by the assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; and (c) Application to Admit Late Documents lodged by the applicant on 27 April 2021 and attached documents.

STATEMENT OF REASONS

BACKGROUND

Robin Jack (the applicant) was employed as a full-time arborist by Arbor Pride Pty Ltd (the respondent) on 10 February 2017 when he suffered a crush injury to his right hand.
Mr Jack was putting green waste into a chipping machine when a log became caught. While he was trying to move the log, it became jammed and crushed his right hand against the hopper area where logs are fed into the machine. He suffered lacerations to his third and fifth fingers, and the tip of his ring finger was amputated.
Mr Jack was taken to Royal North Shore Hospital by ambulance where he underwent amputation of his right ring finger at the distal interphalangeal joint, and middle finger laceration closure. He was off work for several weeks before being certified fit for light duties on 5 April 2017 and returning to work.
There is no dispute that Mr Jack suffered a physical injury in the course of his employment with the respondent on 10 February 2017 in the form of a crush injury to his right ring finger with subsequent amputation of the tip, and lacerations to adjoining fingers.
By an Application to Resolve a Dispute (ARD) lodged with the Commission on 13 April 2021, Mr Jack claims compensation for permanent impairment as a result of a primary psychological injury pursuant to section 66 of the Workers Compensation Act1987 (the 1987 Act).
The ARD describes Mr…

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 Jack v Arbor Pride Pty Ltd

Details

AGLC: Jack v Arbor Pride Pty Ltd [2021] NSWPIC 194
Case: [2021] NSWPIC 194
Decision Date: 18 June 2021

CaseChat Overview and Summary

In the case of Jack v Arbor Pride Pty Ltd, the applicant, Jack, sought compensation for a permanent impairment arising from a workplace injury. Jack suffered a crush injury to his right hand, resulting in the amputation of the tip of one finger. The employer, Arbor Pride Pty Ltd, did not contest the physical injury. However, Jack also claimed he experienced bullying and unfair treatment upon returning to work after surgery. The dispute centred on whether Jack suffered a primary psychological injury, distinct from any secondary psychological injury stemming from the physical injury. The court had to determine the nature and extent of Jack's psychological injuries and their compensability.

The legal issues before the court were whether Jack had suffered a primary psychological injury, separate from any secondary psychological injury, and if such a primary psychological injury was compensable. The court needed to evaluate the evidence comprehensively to discern the distinct nature of any primary psychological injury and differentiate it from secondary psychological effects arising from the physical injury. Additionally, the court had to consider the employer's obligations regarding workplace bullying and unfair treatment, and how these factors contributed to the overall psychological impact on Jack.

The court examined the totality of the evidence, concluding that Jack's claims of bullying and unfair treatment, along with his subjective experience, supported the finding of a primary psychological injury. The court noted that while Jack may have suffered a secondary psychological injury due to the physical trauma, it was the primary psychological injury that warranted compensation. The court held that the primary psychological injury was compensable, while any secondary psychological injury was not. Consequently, the matter was remitted to the President for referral to a medical assessor to determine the whole person impairment attributable to the primary psychological injury.

The final orders of the court mandated a referral to a medical assessor to evaluate Jack's whole person impairment resulting from the primary psychological injury. The employer was directed to compensate Jack for this primary psychological injury, while any secondary psychological injury was deemed non-compensable. The court's decision underscored the importance of distinguishing between primary and secondary psychological injuries in workers' compensation claims.

Orders