BCL v K & W Haulage Pty Ltd
[2022] NSWPIC 552
•6 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | BCL v K & W Haulage Pty Ltd [2022] NSWPIC 552 |
| APPLICANT: | BCL |
| RESPONDENT: | K & W Haulage Pty Ltd |
| Member: | Michael McGrowdie |
| DATE OF DECISION: | 6 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant was employed by the respondent as a truck driver; he alleged psychological injury said to have resulted from alleged comments made to him in the workplace by fellow employees about his sexuality; a psychological condition was not in dispute; the respondent raised a |
| determinations made: | 1. The respondent is to pay the applicant, in accordance with the legislation, weekly and as claimed by the in the Application for Determination, 2. The respondent is to pay the applicant’s medical expenses pursuant to section 60 of the Workers Compensation Act1987. 3. The matter is remitted to the President to refer the matter to a Medical Assessor to assess any whole person impairment as a result of psychological injury on 5 November 2020 (deemed date). The documents to be furnished to the Medical Assessor are: (1) the ARD, (2) the Reply, and (3) any late documents already filed. |
STATEMENT OF REASONS
A brief statement is attached setting out the Commission’s reasons for the determination.
The applicant, BCL, aged 33 years, brings this claim for weekly compensation, medical expenses and lump sum compensation alleged for psychological injury as a result of incidents in the workplace whilst employed by the respondent.
The applicant was employed by the respondent as a truck driver between March and November 2020.
BACKGROUND
The applicant has asserted that he was subjected to distressing comments about his sexuality by fellow workers. The Applicant is of homosexual orientation and is HIV positive, which is controlled by medication.
The applicant has generally had a good work history. Whilst with the respondent he took some time off work due to an ankle injury which occurred outside of work. During his time with the respondent, he had two truck accidents deemed to be his fault. His pay was docked to pay for the damage. The respondent considered that the applicant was often aggressive in his attitude at work.
Upon his return to work following the ankle injury, the Applicant was called into the office and given notice that his employment was terminated. The Applicant took the matter to the Fair Work Commission and these proceedings were subsequently finalised.
That the applicant has a psychological condition is not in issue. The respondent argues that any psychological condition suffered by the applicant is not work-related upon the basis that the respondent denies the applicant’s allegations of comments having been made in the workplace regarding his sexuality (Section 4 – injury), and further, that if there was any work caused “injury” the injury is not compensable by virtue of the provisions of section 11A of the Workers Compensation Act 1987 in that the condition was “wholly or predominantly” due to reasonable action taken by the respondent in dismissing the applicant.
THE ISSUES
The issues in this matter are:
(1)Whether the applicant suffered psychological injury as a result of his employment, and if so,
(2)whether the condition is “wholly and predominantly” the result of the reasonable action of the employer in dismissing the applicant from his employment.
THE RELEVANT LEGISLATION
Section 4 of the Act requires that the applicant suffer an injury as a result of his employment and thereby developed a condition.
Section 9 provides that no compensation is payable unless the employment was a substantial contributing factor to the injury.
Section 11A relevantly provides that:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken … by …the employer with respect to …. Dismissal of workers …”
DISCUSSION
11.The applicant was diagnosed with a bi-polar disorder in 2008 and has successfully been treated with appropriate medication.
After his employment with the respondent was terminated in November 2020, the HIV status. applicant obtained other employment for a short period but struggled with this, ceased work and sought treatment for a psychological condition which he attributes to his employment with the respondent.
On 16 February 2021 the applicant consulted with Dr Carr, Psychiatrist, who had managed his bi-polar disorder. At the appointment the applicant described the abrupt onset of anxiety and distress in his workplace related to comments about his sexuality and his HIV status.
The doctor regarded the applicant as having been well for three years until his experiences at work. She attributed the cause of his condition to be the workplace.
15.His general practitioner has assessed that the applicant as unfit for work as a result of his condition.
The solicitor for the applicant arranged for the applicant to see a medico-legal consultant, Dr Takyar, Psychiatrist. Dr Takyar produced a report dated 21 December 2021. He originally assessed the Applicant in May 2021 and then re-assessed the applicant on 15 December 2021.
17 It was Dr Takyar’s opinion that the applicant would struggle to realistically return to work except in the most minimal way. He considered that the applicant was suffering with an adjustment disorder with depression and anxiety against a background of a bi-polar disorder which had stabilised. Dr Takyar regarded the applicant’s employment as a substantial contributing factor and considered that the applicant’s prognosis was guarded with a need for ongoing treatment.
The doctor’s assessed the degree of whole person impairment to be 17% as a result of injury.
Dr Lee examined the applicant on behalf of the respondent. In her report dated 13 April 2021 she described the development of symptoms while the applicant was working for the respondent. She noted that the employees of the respondent denied that they made any comments to the applicant regarding his sexuality.
It was the doctor’s opinion that the applicant’s dismissal was the predominant factor in terms of his condition. However, this was against a background of the applicant experiencing significant symptoms prior to his dismissal.
There is a factual dispute about whether or not there were comments and questions by others in the workplace regarding the applicant’s sexuality as set out in his statement initially made by him in the proceedings. The applicant refers to comments by Kyle, the yard supervisor, and which would seem to have commenced when the applicant attended work one day with his hair dyed dark red. According to the applicant, Kyle kept asking him if he, the applicant, was gay and later, also asked the applicant how was it that the he the applicant, had HIV.
On another occasion the applicant said he heard one employee say to another that he was sure the applicant was gay. The applicant further states how other comments and questions came from Karl, a truck driver.
The applicant concedes that sometimes he had a short fuse but says that the same could be said of others.
The applicant also relies on his brother who recounts that he worked for a company who used the respondent’s business to transport cranes. and that when he spoke to a driver about the applicant following the applicant’s dismissal, that person said “… the pretty boy, nice bloke”.
The respondent and its workers deny that any untoward questions or comments were directed to, or about the applicant regarding his sexuality. This is contained in a factual investigation report commissioned by the respondent. There is also the statement in late documents lodged by the respondent, from Mat Gurney, Bill Buchanan and Neville Margi.
In response, and by way of a late document, the applicant lodged a statement dated 17 March 2022. The applicant concedes that he was upset and affected by his termination but is adamant that his sexuality became an ‘issue’ for him at and that his led to the development of symptoms of a psychological illness.
CONCLUSION
Given the consistency of the applicant’s complaints substantiated by the histories he has given to doctors, I accept that the applicant perceived he was made the subject of comments and questions with regard to his sexuality and that this precipitated symptoms which have continued.
I further accept that as a result of his condition the applicant is unfit for meaningful employment and requires ongoing medical treatment.
Whilst the applicant’s dismissal from his employment has been a contributing factor to his ongoing condition, I do not regard the dismissal to be the whole or predominant cause of his condition and that the requirements for section 11A to apply are not met, leaving aside whether the dismissal was reasonable or not (see generally: Commissioner of Police v Minahan [2003] NSWCA 239).
I accept that the applicant’s employment was a substantial contributing factor to the applicant’s injury, namely, his psychological condition.
I admit the late documents lodged by the applicant and the respondent.
I conclude that the applicant is entitled to weekly compensation in accordance with the legislation as claimed in the Application for Determination and for medical expenses pursuant to Section 60 of the Act. The assessment of any whole person impairment is to be assessed by a Medical Assessor.
DETERMINATION
The respondent is to pay the applicant, in accordance with the legislation, weekly and as claimed by the in the Application for Determination,
The respondent is to pay the applicant’s medical expenses pursuant to section 60 of the Workers Compensation Act1987.
The matter is remitted to the President to refer the matter to a Medical Assessor to assess any whole person impairment as a result of psychological injury on 5 November 2020 (deemed date). The documents to be furnished to the Medical Assessor are: (1) the ARD, (2) the Reply, and (3) any late documents already filed