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Smith v Moraitis Administration Pty Limited

Smith v Moraitis Administration Pty Limited

Case [2021] NSWPIC 268 30 July 2021

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Moraitis Administration Pty Limited [2021] NSWPIC 268
APPLICANT:	Mahaswari Smith
RESPONDENT:	Moraitis Administration Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	30 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim pursuant to section 66 of the 1987 Act for lump sum compensation in respect of a primary psychological injury; previous consent orders awarding weekly compensation; whether consent orders create an estoppel on the question of injury; whether the same injury was relied on in both proceedings; where subsequent periods of employment and non-work stressors; Held- previous consent orders created an estoppel on the question of injury; Manpower Pty Limited v Harris considered; applicant sustained a psychological injury pursuant to sections 4, 11A(3) and 9A; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	1. The applicant sustained a compensable psychological injury pursuant to ss 4(b)(i), 9A and 11A(3) of the Workers Compensation Act 1987. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 28 April 2008 (deemed) Body system: Primary psychological injury Method: Whole Person Impairment 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ms Mahaswari Smith (the applicant) was employed as a Quality Assurance Officer by Moraitis Administration Pty Limited (the respondent). The applicant claims that she sustained a psychological injury due to bullying and harassment by her employer between 2000 and April 2008.
The applicant made a claim for compensation in respect of which proceedings were brought before the former Workers Compensation Commission in 2010. Proceedings WCC 10789/10 were resolved by way of consent orders issued on 20 April 2011 under which the respondent was to pay the applicant a closed period of weekly compensation. The respondent also agreed to pay, on a voluntary basis, the applicant’s incurred s 60 expenses up to $1,500. Awards were made in favour of the respondent otherwise and thereafter.
The applicant subsequently made a claim for lump sum compensation in respect of a psychological injury based on an assessment of 18% whole person impairment (WPI) by psychiatrist, Dr Thomas Oldtree Clark. Dispute notices were issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of that claim on 11 April 2019 and 16 April 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 20 May 2021. In the ARD, the applicant described the injury as:
“Primary psychological injury. The Applicant was bullied and harassed by her employer from early 2000 to April 2008 (deemed 29/06/2003 and 28/04/2008) resulting in psychological injury.”
The applicant seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in accordance with the assessment of Dr Oldtree Clark.

PROCEDURE BEFORE THE COMMISSION

The parties appeared…

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.

Continue reading Smith v Moraitis Administration Pty Limited

Details

AGLC: Smith v Moraitis Administration Pty Limited [2021] NSWPIC 268
Case: [2021] NSWPIC 268
Decision Date: 30 July 2021

CaseChat Overview and Summary

The applicant, Smith, filed a claim against Moraitis Administration Pty Limited for lump sum compensation under section 66 of the 1987 Act, related to a primary psychological injury. Smith had previously been awarded weekly compensation through consent orders, which included the acceptance of a psychological injury. The central issue before the court was whether these consent orders created an estoppel on the question of the existence of the injury, and whether the same injury was relied upon in both the current lump sum claim and the prior proceedings. Additional considerations included the impact of subsequent employment periods and non-work-related stressors on the claim.

The court examined whether the previous consent orders, which acknowledged a psychological injury, established an estoppel preventing Smith from asserting the existence of the same injury in the current claim. The court referenced the decision in Manpower Pty Limited v Harris to support its analysis, determining that the previous consent orders did indeed create an estoppel on the issue of the injury. The court further concluded that Smith had sustained a psychological injury under sections 4, 11A(3), and 9A of the Act, despite the presence of subsequent employment periods and non-work stressors. The matter was remitted to the President for a referral to a Medical Assessor to evaluate the claim further.

In light of the court's findings, the matter was to be returned to the President for the necessary referral to a Medical Assessor to assess the lump sum compensation claim, considering the established psychological injury and the impact of subsequent employment and non-work stressors.

Orders