Kumar v Electrical Home-Aids Pty Ltd - [2023] NSWPIC 125

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kumar v Electrical Home-Aids Pty Ltd [2023] NSWPIC 125
APPLICANT:	Kamal Kumar
RESPONDENT:	Electrical Home-Aids Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	28 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation, weekly benefits and medical expenses in respect of a psychological injury; respondent denies liability and relies on section 11A(1) with respect to transfer, performance appraisal and/ or discipline; Held – respondent has not placed into evidence the source material which it relied on to uphold disciplinary complaints against the applicant and to in dismiss his complaints against his manager; impossible to determine that conduct to have been reasonable; reasonableness must be determined objectively with regard to all of the evidence; Ritchie v Department of Community Services followed; insufficient evidence offered by the respondent to satisfy the onus of proving the substance of the matters; the respondent has not discharged the onus of proving those actions were reasonable, and the defence under section 11A therefore fails; permanent impairment claim remitted to the President of the Personal Injury Commission for referral to a Medical Assessor (MA) to determine the permanent impairment arising from the applicant’s injury; no exceptional circumstances having been established; the surveillance film served with the Reply will not be referred to the MA; Rule 109 of the Personal Injury Commission Rules 2021 applied; Erskine v Cozwine Pty Limited followed; claims for weekly compensation and medical expenses are listed for further telephone conference after the issuing of a Medical Assessment Certificate per Jaffarie v Quality Castings Pty Ltd.
determinations made:	1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 18 August 2022. 2. The injury referred to in [1] above was not caused by the respondent's reasonable actions with respect to performance appraisal, transfer and/or discipline. 3. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of injury: 18 August 2020 (deemed). Body systems: psychological injury. Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondents Application to Admit Late Documents dated 14 February 2023. 5. The surveillance film attached to the Reply is not to be referred to the Medical Assessor. 6. The claims for weekly benefits and medical and treatment expenses are adjourned to a date after the issuing of the Medical Assessment Certificate.

STATEMENT OF REASONS

BACKGROUND

Kamal Kumar (the applicant) claims weekly payments, a general order for medical expenses and permanent impairment compensation in respect of a psychological injury with a deemed date of injury of 18 August 2020. He alleges the injury was caused…

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 125
Decision Date: 28 March 2023

CaseChat Overview and Summary

Kumar has brought a claim for permanent impairment compensation, weekly benefits, and medical expenses in relation to a psychological injury against Electrical Home-Aids Pty Ltd. The respondent denies liability and relies on section 11A(1) of the Workers Compensation Act 1987, asserting that the applicant's conduct, specifically transfer, performance appraisal, and discipline, contributed to his injury. The case was heard by the Personal Injury Commission of Queensland.

The legal issues before the court included whether the respondent had adequately discharged the onus of proving that the conduct in question was reasonable and whether the respondent's reliance on section 11A(1) was justified. The court found that the respondent had failed to provide the source material relied upon to uphold the disciplinary complaints against the applicant, making it impossible to determine the reasonableness of the conduct. The court held that the reasonableness must be assessed objectively with regard to all the evidence, following the decision in Ritchie v Department of Community Services. The respondent's evidence was deemed insufficient to prove the substance of the matters in question, thus failing to satisfy the onus of proof required under section 11A(1). Consequently, the defence under section 11A was rejected.

The court remitted Kumar's claim for permanent impairment to the President of the Personal Injury Commission for referral to a Medical Assessor to determine the degree of permanent impairment resulting from the applicant's injury. No exceptional circumstances were established to warrant the referral of the surveillance film to the Medical Assessor, in line with Rule 109 of the Personal Injury Commission Rules 2021, as illustrated in Erskine v Cozwine Pty Limited. The claims for weekly compensation and medical expenses were scheduled for a further telephone conference, to be held after the issuance of a Medical Assessment Certificate, in accordance with the decision in Jaffarie v Quality Castings Pty Ltd.

Orders