O'Brien v ISS Property Services Pty Ltd - [2022] NSWPIC 234

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O’Brien v ISS Property Services Pty Ltd [2022] NSWPIC 234
APPLICANT:	Nathan Wayne O’Brien
RESPONDENT:	ISS Property Services Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	23 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly payments, medical expenses and permanent impairment for psychological injury; worker had a previous significant psychological injury as a police officer; whether the worker perceived his workplace to be a hostile environment and was the cause of injury; reference to Attorney General’s Department v K; Held– the worker’s employment was the main contributing factor to his psychological injury; award for weekly payments of compensation, medical expenses and referral for assessment of permanent impairment to Medical Assessor.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent with a deemed date of injury of 10 August 2020. 2. The applicant has had no current work capacity since 10 August 2020. The Commission orders: 1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $587.87 per week from 10 August 2020 to 9 November 2020, pursuant to section 36 of the Workers Compensation Act 1987; and (b) $495 per week from 10 November 2020 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987. 2. The award of weekly payments can be varied by the indexation of the applicant’s pre-injury average weekly earnings as provided for by section 82A of the Workers Compensation Act 1987. 3. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the Workers Compensation Act 1987. 4. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 10 August 2020 Body Part: Psychological injury Method of Assessment: Whole Person Impairment 5. The following documents are to be forwarded to the Medical Assessor: (a) the Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents filed by the applicant on 17 February 2022; (d) Application to Admit Late Documents filed by the respondent on 4 May 2022; (e) Application to Admit Late Documents filed by the applicant on 5 May 2022; and (f) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nathan Wayne O’Brien, claims that he sustained a psychological injury in the course of his employment as a cleaner with the respondent, ISS Property Services Ltd.
The applicant claims he was subjected to bullying and harassment during the course of his employment from August 2018 to August 2020 which caused psychological injury.
The applicant made a claim for workers compensation on 14 August 2020. The respondent issued a letter on 10 September 2020 wherein it advised the applicant that liability had been accepted for this claim. However, a dispute notice was issued two months later on 11 November 2020 wherein liability was disputed on the…

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 234
Decision Date: 23 May 2022

CaseChat Overview and Summary

The case of O'Brien v ISS Property Services Pty Ltd involved a worker who sought compensation for a psychological injury he claimed to have suffered due to his employment. The worker had previously experienced significant psychological injury in his role as a police officer. The court was tasked with determining whether the worker's perception of his workplace as a hostile environment was the cause of the injury and if his employment was the main contributing factor. The dispute hinged on the interplay between the worker's prior psychological injury and the new claims of workplace hostility.

The primary legal issue before the court was whether the worker's current psychological injury was a result of the perceived hostile work environment, or if it was exacerbated by his previous injury. The court had to assess the relative contributions of the worker's prior psychological injury and the workplace environment to the current injury. This involved an analysis of the worker's perception of the workplace, the nature of the psychological injury, and the applicability of the principles from Attorney General’s Department v K.

In delivering the judgment, the court found that the worker's employment was indeed the main contributing factor to his psychological injury. The court referred to the case of Attorney General’s Department v K, where it was established that a worker's perception of their workplace as hostile could contribute to psychological injury. The court acknowledged the worker's previous injury but concluded that the current injury was significantly influenced by the workplace environment. As a result, the court awarded weekly payments of compensation, medical expenses, and referred the matter for a permanent impairment assessment to a Medical Assessor. The court's decision underscored the importance of considering both the worker's history and the workplace environment in determining the cause of psychological injuries.

Orders