Romanous Constructions Pty Ltd v Arsenovic - [2009] NSWWCCPD 82

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82
APPELLANT:		Romanous Constructions Pty Ltd
RESPONDENT:		Mirko Arsenovic
INSURER:		GIO General Limited
FILE NUMBER:		A1- 9873/08
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		24 March 2009
DATE OF APPEAL DECISION:		17 July 2009
SUBJECT MATTER OF DECISION:		Section 65A of the Workers Compensation Act 1987; psychological injury; whether worker received a primary psychological injury or a secondary psychological injury; entitlement to compensation where worker has received both a physical injury and psychological injury; effect of payment of lump sum compensation for physical injury before assessment of impairment from psychological injury
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:	Martin Bell & Co
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 24 March 2009 is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal.

INTRODUCTION

This appeal concerns the application and interpretation of section 65A of the Workers Compensation Act 1987 (‘the 1987 Act’) and whether the worker’s psychological condition of post traumatic stress disorder with depression is a primary psychological injury or a secondary psychological injury, and the circumstances in which a worker is “entitled to receive” lump sum compensation when he or she has received both physical and psychological injuries in the one incident.

BACKGROUND

The worker, Mr Arsenovic, sustained multiple injuries in a car accident on 1 October 2002 when he was driving from his place of employment with the appellant, Romanous Constructions Pty Ltd (‘Romanous’), to his home. There is no dispute that he injured his neck and lower back in the accident.

In a claim for lump sum compensation filed in the Commission in 2003 (Matter No. 12210 of 2003) Mr Arsenovic recovered lump sum compensation in the sum of $6,250.00 in respect of a 5 percent whole person impairment as a result of injuring his lumbar spine in the car accident (Certificate of Determination dated 7 April 2004). That compensation was paid as a result of a Medical Assessment Certificate (‘MAC’) issued by an Approved Medical Specialist (‘AMS’), Dr Meakin, after his examination on 3 February 2004. Dr Meakin also assessed Mr Arsenovic to have nil whole person impairment as a result of injury to his cervical spine.

On 16 October 2008, Mr Arsenovic made a claim for lump sum compensation in respect of a 19 percent whole person impairment as a result of a deterioration in his cervical and lumbar spines and as a result of an injury to his right upper extremity. He also claimed compensation in respect of 18 percent whole person impairment for a primary psychiatric injury alleged to have resulted from the car accident.

By letter dated 11 November 2008, GIO General Limited (‘GIO’) disputed liability in respect of the claim for additional lump sum compensation on the grounds that Mr Arsenovic had not injured…

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

AGLC: Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82
Case: [2009] NSWWCCPD 82
Decision Date: 17 July 2009

CaseChat Overview and Summary

Romanous Constructions Pty Ltd brought a claim against its former employee, Mr Arsenovic, under the Workers Compensation Act 1987. The dispute centres on the nature and extent of the injuries Mr Arsenovic sustained during his employment and his entitlement to compensation. The case was heard in the Dust Diseases Tribunal of New South Wales, presided over by Arbitrator M.D. McIvor.

The key legal issues in this case were whether Mr Arsenovic suffered a primary psychological injury or a secondary psychological injury, and whether he was entitled to compensation for both a physical injury and a psychological injury. Additionally, the court had to consider the effect of a lump sum compensation payment made for the physical injury before the assessment of impairment from the psychological injury.

The Tribunal concluded that Mr Arsenovic had indeed suffered both a primary and a secondary psychological injury. The Tribunal found that the primary psychological injury arose from the physical injury and the secondary psychological injury was caused by the stress and anxiety experienced as a result of the physical injury. The Tribunal also determined that Mr Arsenovic was entitled to compensation for both the physical and psychological injuries. However, the Tribunal ruled that the payment of lump sum compensation for the physical injury prior to the assessment of impairment from the psychological injury did not affect the entitlement to compensation for the psychological injury.

The Tribunal confirmed the Arbitrator’s determination of 24 March 2009, upholding the award of compensation for both the physical and psychological injuries sustained by Mr Arsenovic.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 24 March 2009 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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