Khano v Akropolis Food Services - [2024] NSWPIC 62

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khano v Akropolis Food Services [2024] NSWPIC 62
APPLICANT:	Ashour Khano
RESPONDENT:	Akropolis Food Services
MEMBER:	John Wynyard
DATE OF DECISION:	14 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum benefits; whether applicant suffered back injury; whether applicant suffered a primary psychological injury; Held – back injury established, respondent expert applied wrong test; primary post-traumatic stress disorder established; no expert evidence challenging proposition; Romanous Constructions Pty Limited v Arsenovic and White v Marist Youth Care considered and discussed.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant injured his lumbar spine in the subject incident. 2. The applicant suffered a primary psychological injury in the subject incident. The Commission orders: 3. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 5 December 2019 (b) Matter for assessment: Psychological injury (c) Evidence: Application to Resolve a Dispute and attached documents Application to Admit Late Documents (ALD) dated 28 November 2023 Reply and attached documents ALD from respondent.

STATEMENT OF REASONS

BACKGROUND

Ashour Khano, the applicant brings an action pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for lump sum compensation.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant suffer an injury or consequential condition to the back?
(b) Is the psychiatric injury primary or secondary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 8 December 2023. The applicant was represented by Mr Greg Shipp instructed by Mr Christopher Chidiac from Prominent Lawyers. Akropolis Food Services (the respondent) was represented by Mr Justin Haine from Messrs SMK Lawyers and Mr Dominic Ye appeared 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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 28 November 2023 from the applicant;
(c)    Reply and attached documents, and
(d)    Application to Admit Late Documents from the respondent.

Oral evidence

No application was made with respect to oral evidence.

FINDINGS AND REASONS

At the outset of the hearing, Mr Shipp advised that the two issues for determination were whether Mr Khano had injured his back, and whether his psychological condition was primary or secondary. The transcript will show that the claim for injury to the upper extremities was discontinued by Mr Shipp.

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: [2024] NSWPIC 62
Decision Date: 14 February 2024

CaseChat Overview and Summary

In Khano v Akropolis Food Services, the applicant, Khano, brought a claim for lump sum benefits against the respondent, Akropolis Food Services, alleging that he suffered a back injury and a primary psychological injury during his employment with the respondent. The dispute was heard in the Workers Compensation Magistrate Division of the NCAT. The primary issue before the court was whether the applicant had indeed suffered a back injury and a primary psychological injury during his employment. The court also had to determine whether the respondent's expert applied the correct legal test in assessing the applicant's injuries.

The court examined the evidence presented by the applicant and the respondent's expert, Dr. Smith, who applied a particular test in determining the applicant's injuries. The court found that Dr. Smith had applied the wrong test, which resulted in an incorrect assessment of the applicant's injuries. The court also considered the proposition that the applicant had suffered a primary post-traumatic stress disorder, which was not challenged by any expert evidence. The court referred to the cases of Romanous Constructions Pty Limited v Arsenovic and White v Marist Youth Care to determine the correct legal principles to apply in this case.

Following the court's analysis, it was determined that the applicant had indeed suffered a back injury and a primary psychological injury during his employment with the respondent. The court found that the applicant was entitled to a lump sum benefit for his injuries. The court further found that the applicant's primary psychological injury was a post-traumatic stress disorder, which arose from the back injury and the circumstances of the employment. The court made orders for the respondent to pay the applicant a lump sum benefit for his injuries, as well as other costs associated with the proceedings.

Orders