Tagicaki v Everwilling Cranes Pty Limited - [2022] NSWPIC 203

CERTIFICATE OF DETERMINATION OF MEMBER

Citation:

Tagicaki v Everwilling Cranes Pty Limited [2022] NSWPIC 203

APPLICANT: Taniela Tagicaki

RESPONDENT: Everwilling Cranes Pty Limited

principal member: Glenn Capel

DATE OF DECISION: 9 May 2022

CATCHWORDS:
WORKERS COMPENSATION - The worker, who sustained a primary psychological injury and a secondary physical condition; sought aggregation of whole person impairment assessments on grounds that the physical condition resulted from the psychological injury and not the injurious incident; so section 65A (4) of the Workers Compensation Act 1987 did not apply; Department of Juvenile Justice v Edmed and Ozcan v Macarthur Disability Services Ltd discussed; Held- the term “condition” is not contained in the legislation; only the term “injury”; both assessable impairments resulted from the one injurious event; the worker not entitled to aggregate the assessments of whole person impairment; worker awarded lump sum compensation in respect of impairment due to alcoholic cardiomyopathy.

determinations made:
The applicant is not entitled to aggregate the assessment of whole person impairment due to a psychological injury sustained on 13 September 2018 with the assessment of whole person impairment of the cardiovascular system that resulted from the psychological injury sustained on 13 September 2018.

orders made:
The respondent to pay the applicant $185,190 in respect of 50% whole person impairment of the cardiovascular system due to injury sustained on 13 September 2018 pursuant to section 66 of the of the Workers Compensation Act 1987.

STATEMENT OF REASONS
BACKGROUND
1.Taniela Tagicaki (the applicant) is 54 years old and commenced employment with Everwilling Cranes Pty Ltd (the respondent) as a dogman/ crane chaser on 14 January 2004. He last worked for the respondent on 18 December 2018.
2.There is no dispute that the applicant sustained a psychological injury arising out of or in the course of his employment on 13 September 2018 when he was pinned against a crane after a concrete panel snapped. Liability was accepted by Employers Mutual Ltd (the insurer) and weekly compensation and medical expenses have been paid. Precise details are unknown.
3.On 23 June 2020, the applicant’s solicitor served a notice of claim in respect for lump sum compensation on the respondent and the insurer, based on reports of Dr Oldtree Clark dated 15 May 2020 and Associate Professor Haber dated 5 June 2020

4.On 13 October 2020, the insurer responded to the applicant’s claim for the psychological injury and offered to resolve the claim for 24% whole person impairment. There was no offer in respect of the cardiovascular condition because the respondent’s independent medical examiner, Dr Herman, was not satisfied that the applicant‘s condition had reached maximum medical improvement.

5.By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 10 May 2021, the applicant claims medical expenses in the sum of $5,104.80 pursuant to s 60 of the of the Workers Compensation Act 1987 (the 1987 Act), and lump sum compensation pursuant to s 66 of the 1987 Act in respect of a primary psychological injury and…

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 203
Decision Date: 9 May 2022

CaseChat Overview and Summary

The case of Tagicaki v Everwilling Cranes Pty Limited involved a worker who claimed compensation for both a psychological injury and a secondary physical condition, seeking to aggregate the whole person impairment assessments on the grounds that the physical condition was a result of the psychological injury. The dispute was heard by the Supreme Court of New South Wales. The worker argued that section 65A (4) of the Workers Compensation Act 1987 did not apply because the physical condition did not result from the injurious incident but from the psychological injury sustained. The worker referred to previous cases, including Department of Juvenile Justice v Edmed and Ozcan v Macarthur Disability Services Ltd, to support the argument that the impairments should be aggregated.

The court was required to determine whether the term "condition" in the legislation was synonymous with "injury" and whether the worker was entitled to aggregate the assessments of whole person impairment. The court examined the statutory language and found that the term "condition" was not explicitly defined in the legislation. Instead, the term "injury" was used, and both the psychological injury and the physical condition resulted from the same injurious event. The court concluded that the worker was not entitled to aggregate the assessments of whole person impairment as both impairments stemmed from the same event.

The court awarded the worker a lump sum compensation in respect of the impairment due to alcoholic cardiomyopathy. This award was based on the physical condition that arose as a result of the psychological injury, but the court held that the two impairments could not be aggregated under the relevant provisions of the Workers Compensation Act 1987. The decision underscored the importance of statutory interpretation and the specific language used in workers' compensation legislation in determining the entitlements of a worker.

Orders