Annetts v Bitupave Limited - [2022] NSWPIC 373

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Annetts v Bitupave Limited [2022] NSWPIC 373
APPLICANT:	Edward Annetts
RESPONDENT:	Bitupave Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	12 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) for psychological injury; injury accepted but section 11A(1) of the 1987 defence raised; applicant accused of sexual harassment and inappropriate behaviour by a co-worker; most allegations unsubstantiated following investigation by employer; Northern NSW Local Health Network v Heggie considered; respondent submitted that being informed of the allegations by the employer was the whole or predominant cause of injury; applicant conceded that the process undertaken by the employer was reasonable; Held – applicant drew a distinction between the conduct of his co-worker in making a false allegation and the employer’s conduct in disclosing and investigating the allegation; respondent failed to discharge its onus of proof; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	1. The respondent has not established that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer pursuant to s 11A(1) 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: On or about 22 February 2019 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, the Reply and all attachments and the document attached to an Application to Admit Late Documents lodged by the respondent on 14 June 2022.

STATEMENT OF REASONS

BACKGROUND

Mr Edward Annetts (the applicant) was employed by Bitupave Limited (the respondent) as a truck driver. The applicant claims that he sustained a primary psychological injury when he was accused falsely at work of rubbing his genitals up and down a co-worker’s back and making inappropriate comments.
On 22 May 2020, the applicant made a claim for lump sum compensation in respect of the injury relying on an assessment of 15% whole person impairment (WPI) by consultant psychiatrist, Dr Adesina Adesanya, dated 21 May 2020.
Liability to pay compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 June 2020. Amongst other things, the respondent relied on a defence pursuant to
s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act), deciding that any psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline and/or transfer.
On 7 July 2021, the claim was amended to seek lump sum compensation in respect of 17% WPI in accordance with a supplementary report by Dr Adesanya,…

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 Annetts v Bitupave Limited

Details

AGLC: Annetts v Bitupave Limited [2022] NSWPIC 373
Case: [2022] NSWPIC 373
Decision Date: 12 July 2022

CaseChat Overview and Summary

The case of Annetts v Bitupave Limited involves a claim for lump sum compensation for psychological injury under section 66 of the Workers Compensation Act 1987 (1987 Act). The applicant alleged that he suffered psychological injury due to being accused of sexual harassment and inappropriate behaviour by a co-worker. This case was heard in a relevant court where the dispute was adjudicated.

The court was required to decide whether the respondent could rely on section 11A(1) of the 1987 Act as a defence to the applicant's claim. This section pertains to the circumstances under which the employer’s conduct in disclosing and investigating the allegations could be considered the whole or predominant cause of the applicant's injury. The court had to consider whether the employer’s actions constituted the whole or predominant cause of the applicant's injury and whether the respondent successfully discharged the onus of proof.

In its reasoning, the court considered that the applicant had conceded that the employer's process of disclosing and investigating the allegations was reasonable. However, the applicant argued that the distinction between the conduct of the co-worker in making false allegations and the employer’s conduct in disclosing and investigating the allegation was significant. The court found that the respondent failed to demonstrate that the employer’s actions were the whole or predominant cause of the applicant's injury. The matter was remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.

The court's final orders included remitting the matter to the President for further proceedings, specifically for the assessment of the degree of permanent impairment by a Medical Assessor, without determining whether the employer's actions constituted the whole or predominant cause of the injury.

Orders