Mobbs v Menzies Property Services Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Mobbs v Menzies Property Services Pty Limited & others [2022] NSWPIC 419

APPLICANT:

Lynette Mobbs

FIRST RESPONDENT:

Kmart Australia Limited

SECOND RESPONDENT:

Menzies Property Services Pty Limited

MEMBER:

John Wynyard  

DATE OF DECISION:

28 July 2022

CATCHWORDS:

WORKERS COMPENSATION - Action for weekly and lump sum compensation against two employers for physical and psychological injury; whether later employer liable for weeklies; whether alleged psychological injury was primary or secondary; whether the section 11A of the Workers Compensation Act 1987 (1987 Act) defence available if primary; whether the actions of the first respondent were reasonable regarding transfer; whether intervening medical condition relevant; Held — section 16 of the 1987 Act considered regarding weeklies claim against the second respondent after first respondent employment found causative of subject back injury: subsequent back complaints  with second respondent not main or contributing factor; award for weeklies against first respondent; psychological injury primary; actions of first respondent not reasonable; award against first respondent for lump sum to be assessed; no current work capacity caused by psychological injury; intervening medical condition not relevant. 

DETERMINATIONS MADE:

The Commission finds:

1.     The applicant has sustained in the course of and arising out of her employment with the first respondent a primary psychiatric injury with a deemed date of 24 February 2015.

2.     The applicant has sustained in the course of and arising out of her employment an injury consisting of the aggravation of spondylitic disease in her lumbar spine with a deemed date of incapacity of 27 October 2014, the date of incapacity.

The Commission orders:

3. The first respondent to make weekly payments of compensation in accordance with the wages schedule reproduced below, such order concluding on 24 April 2017 at the expiry of the applicant’s entitlement pursuant to s 37 of the Workers Compensation Act 1987.

4.     The first respondent is to pay the applicant’s s 60 expenses incurred with regard to her physical injury and her psychiatric injury.

5.     I remit this matter to the President for referral to a Medical Assessor for the assessment of whole person impairment on the following bases:

(a)    Date of injury: 24 February 2015 (deemed)

(b)    Matter for assessment: psychiatric/psychological injury

(c)    Evidence  

(i)     Application to Resolve a Dispute and attached documents;

(ii)     Application to Admit Late Documents with applicant’s annexures;

(iii)     Reply first respondent;

(iv)    Application to Admit Late Documents with first respondent annexures, and

(v)     Reply from the second respondent is excluded.

6.     Leave is granted to approach with regard to the calculation of the applicant’s weekly entitlements.

STATEMENT OF REASONS

BACKGROUND

1. Lynette Mobbs, the applicant, brings an action against Kmart Australia Limited, the first respondent, and Menzies Property Services Pty Limited, the second respondent, for weekly compensation, lump sum entitlements and s 60 medical expenses with regard to both physical and psychological injuries.

2. Dispute notices were duly lodged.

3. The Application to Resolve a Dispute (ARD) and Replies on behalf of both respondents were issued.

ISSUES FOR DETERMINATION

1. The parties agree…