Mazzocchi v Unitrans Asia Pacific Pty Ltd - [2022] NSWPIC 186

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mazzocchi v Unitrans Asia Pacific Pty Ltd [2022] NSWPIC 186
APPLICANT:	David Carlos Alejandro Mazzocchi
RESPONDENT:	Unitrans Asia Pacific Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	28 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly payments of compensation and lump sum payment for injury to the lumbar spine, right hip, and both knees, as well as psychological injury due to bullying in the workplace; respondent concedes injury to the lumbar spine but disputes all other injuries; claim for right hip made pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); reference to AV v AW; claim for right knee condition made in the alternative as a consequential condition; reference to Attorney General’s Department v K in regard to claim for psychological injury; respondent disputes that the Commission has jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act in the circumstances of this dispute; reference to several decisions of Members of the Commission on this issue; Held– worker sustained disease injury to his right hip as provided for by section 4(b)(ii) of the 1987 Act; award for the respondent for the claims of injury to both knees; worker sustained consequential condition affecting his right knee as a result of injury to the right hip; worker sustained a psychological injury in the course of his employment; Commission has jurisdiction to make an award of weekly payments pursuant to section 38 of the 1987 Act in the circumstances of this dispute; award of weekly payments and referral to Medical Assessor/s for assessment of permanent impairment for both physical and psychological injuries.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his right hip and lumbar spine in the course of his employment with the respondent, pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 22 February 2018. 2. The applicant did not sustain an injury to his right knee or left knee in the course of his employment with the respondent. 3. The applicant sustained a consequential condition affecting his right knee as a result of the injury to his right hip. 4. The applicant sustained a psychological injury in the course of his employment with the respondent, pursuant to section 4 (b)(i) of the Workers Compensation Act 1987, with a deemed date of injury of 22 February 2018. 5. The applicant had no current work capacity from 22 February 2018 to 28 February 2021. 6. The applicant has had a partial incapacity for work since 1 March 2021. 7. The Personal Injury Commission has jurisdiction to award weekly payments of compensation pursuant to section 38 of the Workers Compensation Act 1987.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $992.75 per week from 22 February 2018 to 24 May 2018, pursuant to section 36 (1) of the 1987 Act; (b) $836 per week from 25 May 2018 to 20 August…

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: [2022] NSWPIC 186
Decision Date: 28 April 2022

CaseChat Overview and Summary

The dispute in Mazzocchi v Unitrans Asia Pacific Pty Ltd before the Workers Compensation Commission of New South Wales involved an employee, Mazzocchi, who sought weekly payments of compensation and a lump sum payment for injuries sustained in the workplace. Unitrans Asia Pacific, the employer, conceded an injury to the lumbar spine but contested the remaining injuries, which included the lumbar spine, right hip, both knees, and a psychological injury due to workplace bullying. The case turned on whether Mazzocchi's injuries were compensable under the Workers Compensation Act 1987 and if the Commission had jurisdiction to award weekly compensation under section 38 of the Act.

The court had to determine several key legal issues. Firstly, whether Mazzocchi's right hip injury was a compensable disease as defined in section 4(b)(ii) of the 1987 Act. Secondly, whether the injuries to both knees were compensable, with the right knee claim being made as a consequential condition of the right hip injury. Thirdly, the court had to assess if Mazzocchi's psychological injury was sustained in the course of his employment and whether the Commission had jurisdiction to award weekly compensation under the specific circumstances of this case.

In its decision, the Workers Compensation Commission found that Mazzocchi's right hip injury was indeed a compensable disease under section 4(b)(ii) of the 1987 Act. The Commission also ruled that Mazzocchi's right knee condition was a consequential condition of the right hip injury, but dismissed the claim for the left knee. Regarding the psychological injury, the Commission found that Mazzocchi had sustained such an injury in the course of his employment. The Commission further held that it had jurisdiction to make an award of weekly payments pursuant to section 38 of the 1987 Act. Consequently, the Commission ordered weekly payments and referred Mazzocchi to Medical Assessors for the assessment of permanent impairment for both his physical and psychological injuries.

Orders