Barden v Walgett Shire Council - [2022] NSWPIC 706

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Barden v Walgett Shire Council [2022] NSWPIC 706
APPLICANT:	Christopher Dale Barden
RESPONDENT:	Walgett Shire Council
Member:	Gaius Whiffin
DATE OF DECISION:	8 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for psychological injury; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence and factual material; consideration of the reliability of evidence; Withyman v State of New South Wales and Paric v John Holland (Constructions) Pty Limited considered; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b) of the 1987 Act in relation to which his employment with the respondent was the main contributing factor; AV v AW and Attorney General’s Department v K considered; consideration of whether the respondent can establish (pursuant to section 11A of the 1987 Act) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, Hamad v Q Catering Limited and ACR v Grace Worldwide Pty Limited considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 14 April 2021; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act; Held – the applicant contracted a ‘disease’ injury pursuant to section 4(b) of the 1987 Act, in relation to which his employment with the respondent was the main contributing factor; the injury will be deemed to have occurred on 14 April 2021 (that being the first date of his incapacity) in accordance with section 15(1)(a)(i) of the 1987 Act; the respondent has failed to establish (pursuant to section 11A of the Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; the applicant was incapacitated for work as a result of the psychological injury between 14 April 2021 and 17 September 2021; during that period he had no current work capacity; the applicant has otherwise failed to establish that he has been incapacitated for work as a result of the psychological injury since 18 September 2021; the applicant is entitled to have his reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act paid by the respondent, in relation to the psychological injury deemed to have occurred on 14 April…

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 706
Decision Date: 8 December 2022

CaseChat Overview and Summary

In the case of Barden v Walgett Shire Council, the applicant, Barden, sought weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) due to a psychological injury sustained during his employment with the respondent, Walgett Shire Council. The matter was heard by a Magistrate of the NSW Civil and Administrative Tribunal (NCAT).

The primary legal issues for the court to address included whether the applicant's injury constituted a 'disease' within the meaning of section 4(b) of the 1987 Act, whether the Council's actions were the main contributing factor to the injury, and whether the Council could demonstrate that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it regarding discipline, termination, or the provision of employment benefits. Additionally, the court had to determine the extent of the applicant's incapacity for work and his entitlement to reasonably necessary medical and treatment expenses.

In reaching its decision, the court considered the applicant's and other witnesses' statements, medical reports, treatment records, and correspondence. It assessed the reliability of the evidence and examined relevant case law, including Withyman v State of New South Wales, Paric v John Holland (Constructions) Pty Limited, AV v AW, Attorney General’s Department v K, and several other cases cited by both parties. The court found that the applicant had indeed contracted a 'disease' injury pursuant to section 4(b) of the 1987 Act, with his employment being the main contributing factor. The psychological injury was deemed to have occurred on 14 April 2021, the first date of the applicant's incapacity, in accordance with section 15(1)(a)(i) of the 1987 Act. The Council failed to establish that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it regarding discipline, termination, or the provision of employment benefits. The applicant was found to be incapacitated for work between 14 April 2021 and 17 September 2021, during which time he had no current work capacity. However, the applicant did not establish that he had been incapacitated for work as a result of the psychological injury since 18 September 2021.

The court concluded that the applicant was entitled to have his reasonably necessary medical and treatment expenses paid by the respondent in relation to the psychological injury deemed to have occurred on 14 April 2021. The court awarded the applicant compensation pursuant to sections 36 and 37 of the 1987 Act between 14 April 2021 and 17 September 2021, and the Council thereafter. The applicant was also awarded for his reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act.

Orders