BDT v Aware Super Services Pty Ltd - [2023] NSWPIC 199

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BDT v Aware Super Services Pty Ltd [2023] NSWPIC 199
Claimant:	BDT
insurer:	Aware Super Services Pty Ltd
Member:	Brett Batchelor
DATE OF DECISION:	3 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury due to stress, overwork and lack of support over a two year period in the course of employment with the respondent employer up until the time she was made redundant; the respondent alleged that the applicant’s employment was not the main cause of the contraction of the psychological injury, or the aggravation, acceleration, exacerbation or deterioration of injury, and that if injury was found, the action of the respondent in respect of redundancy and the provision of employments was reasonable under section 11A; detailed examination of treating medical evidence over the period claimed by the applicant that she claimed she was overworked and unsupported, and lay evidence form the applicant and respondent; consideration of subsequent treating medical evidence and independent medical examination evidence; Held – the opinions of the applicant’s treating practitioners in the period after she ceased work for the respondent, and the opinion of the independent medical examiner, were based on incomplete, inadequate of incorrect evidence and should be given limited weight; Hancock v East Coast Timber Products Pty Ltd applied; finding that the applicant’s employment with the respondent over the period claimed by the applicant was not the main cause of the applicant contracting psychological injury, or of the aggravation, acceleration, exacerbation or deterioration of psychological injury; determination of section 11A defence not required; award for the respondent.
determinations made:	1. The applicant’s employment with the respondent was not the main contributing factor to the applicant contracting psychological injury suffered by her. 2. The applicant’s employment with the respondent was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the psychological injury suffered by her. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

BDT (the applicant) seeks weekly benefits and compensation for expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of her employment with Aware Super Services Pty Ltd (the respondent), deemed to have occurred on 3 June 2022.
BDT commenced employment with the respondent on 22 October 2018 as an executive assistant to the Group Executive, Legal and Company Secretariat. She worked in that position for the entire period of her employment with the respondent, during which time Ian Pendleton fulfilled the role of Group Executive, and was the applicant’s supervisor. The applicant was made redundant by the respondent on 15 July 2022.
BDT’s duties included looking after the affairs of Mr Pendleton as well as administering the meetings of the board of directors and its committees. She says that she looked after everything that had to do with the Company Secretariat and corporate governance. When not…

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 BDT v Aware Super Services Pty Ltd

Details

AGLC: BDT v Aware Super Services Pty Ltd [2023] NSWPIC 199
Case: [2023] NSWPIC 199
Decision Date: 3 May 2023

CaseChat Overview and Summary

In the matter of BDT v Aware Super Services Pty Ltd, the applicant sought compensation for psychological injury sustained during her employment with the respondent, alleging the injury resulted from stress, overwork, and lack of support over a two-year period, culminating in her redundancy. The respondent contested the applicant’s claims, asserting that her employment was not the primary cause of the psychological injury or its aggravation, and invoking section 11A as a defence. The court was required to determine the extent to which the applicant's employment contributed to her psychological condition and whether the employer's actions regarding redundancy were reasonable.

The court meticulously reviewed the treating medical evidence from the period during which the applicant was employed by the respondent, as well as subsequent opinions from her treating practitioners and an independent medical examiner. It was established that the later opinions were based on incomplete, inadequate, or incorrect evidence and thus carried limited weight. The court applied the principles from Hancock v East Coast Timber Products Pty Ltd, emphasising the importance of contemporaneous medical evidence. Based on this analysis, the court concluded that the applicant’s employment was not the main cause of her psychological injury, nor did it significantly contribute to its aggravation, acceleration, exacerbation, or deterioration.

As the court found that the applicant's employment was not the main cause of her psychological injury, it did not proceed to determine the reasonableness of the employer's actions under section 11A. The court ultimately ruled in favour of the respondent, dismissing the applicant’s claim for compensation.

Orders