Brennan v BWP - [2024] NSWPIC 165

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brennan v BWP [2024] NSWPIC 165
APPLICANT:	Michelle Brennan
RESPONDENT:	BWP
MEMBER:	Diana Benk
DATE OF DECISION:	4 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly compensation; causation; whether injury the result of discipline; section 11A; Held– the respondent has not satisfied its onus; the definition of discipline in Kushwaha v Queanbeyan City Council also not relevant in the circumstances of this case; actions of the respondent not deemed to be ‘discipline’ and/or in the alternatively were not reasonable; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37 and section 60 medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent with a deemed date of injury of 21 November 2022. 2. The injury referred to [1] above, was not caused by the reasonable actions of the respondent with regards to discipline. 3. As at the date of injury, the applicant’s pre-injury average weekly earnings were $1,640 per week. 4. As a result of the injury referred to in [1] above, the applicant has and continues to be totally incapacitated for employment from 21 November 2022. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 from 16 June 2023 to date and continuing. 6. The respondent is to pay the applicant’s reasonable medical expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Michelle Brennan (the applicant), a return to work co-ordinator for (BWP) the respondent, claims weekly compensation and medical expenses arising from psychological injury deemed to have occurred on 21 November 2022 (adjustment disorder with anxiety and panic attacks) which she alleges resulted largely from bullying and harassment by her Regional Workplace Health & Safety Manager amongst other matters.
In disputing the claim, the respondent maintained it had no workers compensation liability maintaining its reasonable action with respect to discipline was the whole or predominant cause for the psychological injury and incapacity, relying exclusively on s 11A of the Workers Compensation Act (1987) (the Act). This triggered an application to the Personal Injury Commission (Commission). The matter underwent the usual case management pathway. Following conciliation impasse, I was requested to arbitrate the dispute.
The respondent was represented by Mr Hart of Counsel instructed by Ms Singh. The applicant was represented by Mr Beran of Counsel instructed by Mr Sawyer. Ms Harris was insurer representative. No oral evidence was adduced. In determining the matter I considered oral submissions from counsel; the documents attached to the Application to Resolve a Dispute (ARD); the Reply, an Application to Admit Late Documents (AALD) filed by the respondent on 22 February 2024, (the admission of which was unopposed by the applicant) and the law found in the Act.

CONSIDERATION

I have been asked to determine…

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 Brennan v BWP

Details

AGLC: Brennan v BWP [2024] NSWPIC 165
Case: [2024] NSWPIC 165
Decision Date: 4 April 2024

CaseChat Overview and Summary

Brennan brought an action against BWP, seeking weekly compensation and medical expenses for a psychological injury sustained during his employment. The dispute was heard in the Industrial Relations Commission of New South Wales. The central legal issues before the court were whether the psychological injury resulted from disciplinary action taken by the respondent and, if so, whether such action was reasonable. The court was also required to determine whether the applicant remained totally incapacitated for employment.

The court examined the definition of ‘discipline’ in the context of workers' compensation claims and considered the precedent set by the case of Kushwaha v Queanbeyan City Council. It found that the actions taken by the respondent did not align with the definition of discipline provided in that case. Furthermore, the court held that even if the actions could be considered as discipline, they were not reasonable. The evidence presented indicated that the applicant remained totally incapacitated for employment, leading the court to conclude that the applicant was entitled to weekly compensation and medical expenses.

In light of the above, the court found in favour of the applicant. It determined that the respondent had not met its burden of proof to establish that the injury was a result of disciplinary action or that any such action was reasonable. The court ordered the respondent to pay the applicant weekly compensation and to cover medical expenses as outlined in sections 37 and 60 of the Workers Compensation Act 1987.

The final orders mandated that the respondent was to pay the applicant weekly compensation and medical expenses, affirming the applicant's total incapacity for employment. The court's decision emphasised the importance of the employer's duty to ensure a safe working environment, which includes the reasonable and appropriate management of employee conduct.

Orders