BVN v Tomago Aluminium Pty Ltd - [2024] NSWPIC 260

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BVN v Tomago Aluminium Pty Ltd [2024] NSWPIC 260
APPLICANT:	BVN
RESPONDENT:	Tomago Aluminium Company Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	21 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments in relation to an alleged psychological injury; whether applicant suffered injury as alleged, and if so whether the injury was caused by the respondent’s reasonable conduct with respect to performance appraisal, discipline and/ or the provision of employment benefits; Held – the applicant suffered injury as alleged; the injury was not wholly or predominantly caused by the respondent’s reasonable conduct as alleged; the applicant was and remains wholly incapacitated for employment as a result of his injury; the respondent is to pay the applicant weekly compensation from 22 May 2023 pursuant to section 37 to date and continuing.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 23 February 2023. 2. The applicant’s injury was not wholly or predominantly caused by the respondent’s reasonable conduct with respect to performance appraisal, discipline or the provision of employment benefits. 3. At the date of injury, the applicant’s pre-injury average weekly earnings exceeded the statutory maximum payable under the workers’ compensation legislation. 4. As a result of his injury, the applicant was and remains totally incapacitated for employment from 22 May 2023. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,938.88 per week, subject to periodic indexation. 6. The applicant is to be de-identified in these published reasons.

STATEMENT OF REASONS

BACKGROUND

These proceedings for the payment of weekly compensation are brought by the applicant, BVN against the respondent, Tomago Aluminium Company Pty Ltd in respect of an alleged psychological injury with a deemed date of 23 February 2023.
The applicant claims to have suffered an aggravation of pre-existing post-traumatic stress disorder in the course of his employment with the respondent. He has not worked since that date.
There is no issue the applicant’s pre-injury average weekly earnings (PIAWE) exceeded the statutory maximum payable pursuant to s 34 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent denies that the applicant suffered a work-related injury, and in the alternative alleges any such injury was wholly or predominantly caused by its reasonable actions with respect to performance appraisal, discipline and/ or the provision of employment benefits.
The applicant alleges that as a result of his injury he is totally incapacitated for employment. The respondent submits the applicant has capacity to work approximately 20 hours per week.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a work-related psychological injury;
(b) if so, whether the injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal, discipline and/or the…

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: [2024] NSWPIC 260
Decision Date: 21 May 2024

CaseChat Overview and Summary

BVN brought an action against Tomago Aluminium Pty Ltd in the Workers Compensation Court, seeking weekly compensation payments for an alleged psychological injury sustained during employment. The primary dispute centered on whether the applicant suffered the injury as claimed and, if so, whether the injury was caused by the respondent’s reasonable conduct related to performance appraisal, discipline, or the provision of employment benefits.

The legal issues before the court required clarification on the causation of the psychological injury and whether it was predominantly caused by the respondent’s actions. The court had to determine if the applicant's incapacity was wholly due to the injury and if the employer's actions could be considered reasonable. The applicant argued that the injury resulted from the employer's conduct, while the respondent contended that its actions were reasonable and did not cause or significantly contribute to the applicant’s condition.

The court found that the applicant did suffer the injury as alleged. It ruled that the injury was not wholly or predominantly caused by the respondent's reasonable conduct. The court determined that the applicant was wholly incapacitated for employment due to the injury. Consequently, the respondent was ordered to pay weekly compensation to the applicant from 22 May 2023, pursuant to section 37, to date and continuing. The court's decision highlighted the importance of distinguishing between the reasonable management of employment and actions that might contribute to an employee's psychological injury.

Orders