Chand v Philip Leong Stores Pty Limited - [2022] NSWPIC 423

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chand v Philip Leong Stores Pty Limited [2022] NSWPIC 423
APPLICANT:	Sobana Chand
RESPONDENT:	Philip Leong Stores Pty Ltd
MEMBER:	Marshal Douglas
DATE OF DECISION:	29 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments for incapacity for work from agreed psychiatric injury; issue was whether section 11A of the Workers Compensation Act 1987 applied; respondent did not establish it did; Held — award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay weekly compensation to the applicant pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $778.67 a week from 12 July 2021 to 11 October 2021. 2. The respondent pay weekly compensation to the applicant pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $655.72 a week from 12 October 2021 to date and continuing in accordance with the Act. 3. The respondent pay the applicant’s costs for reasonably necessary treatment of her injury pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Sobana Chand seeks weekly payments of compensation from her employer Philip Leong Stores Pty Ltd (the respondent) for an incapacity for work she has resulting from a psychiatric injury. She seeks the payments be made to her from 12 July 2021. Ms Chand also seeks the respondent pay her compensation for the cost she has incurred for treatment of that injury.
The respondent agrees that Ms Chand suffered a psychiatric injury due to events that occurred in her employment in the period between January 2021 and May 2021. The respondent does not take issue that Ms Chand’s employment was the main contributing factor to her contracting her psychiatric injury, which has been diagnosed as an adjustment disorder with depressed and anxious mood. The respondent contends however, that
s 11A(1) of the Workers Compensation Act1987 (the 1987 Act) does not allow Ms Chand to recover compensation from it for her injury because her injury was wholly or predominantly caused by reasonable action it took or proposed to take with respect to transfer or the provision of employment benefits to Ms Chand.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a preliminary conference on 6 May 2022, conducted by telephone, and a conciliation conference on 3 June 2022 using Microsoft teams. They were represented by their respective solicitors at the preliminary conference and by their respective counsel during the conciliation conference. In accordance with my obligation under cl 6(1) of sch 3 of the Personal Injury Commission Act 2020, I used my best endeavours to assist the parties to reach an acceptable settlement of their dispute. They were unable to do so, and the matter consequently progressed to an arbitration hearing, at the end of which, and at the request of their representatives, I made directions for the parties to file written submissions.

ISSUES FOR DETERMINATION

The parties agree that the single issue for determination is whether Ms Chand’s…

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 423
Decision Date: 29 July 2022

CaseChat Overview and Summary

Chand brought a claim against Philip Leong Stores Pty Limited for weekly payments for incapacity for work due to a psychiatric injury that was acknowledged to have occurred in the course of employment. The primary issue before the court was whether section 11A of the Workers Compensation Act 1987 applied to the situation. This section pertains to the circumstances under which compensation is payable for a psychiatric injury, particularly focusing on whether the injury was caused by a gradual process or a single event.

The court examined whether the employer could establish that the psychiatric injury was not caused by a sudden accident or an identifiable event but rather by a gradual process over time. The respondent argued that section 11A applied, thereby excluding the worker's claim, as it requires a direct link to a sudden and identifiable event. However, the court found that the respondent did not provide sufficient evidence to meet this threshold. Consequently, the court held that the worker was entitled to weekly payments for the incapacity resulting from the psychiatric injury.

In reaching its decision, the court relied on the statutory provisions and the evidence presented by both parties. It was determined that the employer had not discharged the onus of proving that the injury was due to a gradual process, thus leaving the worker's claim unaffected by the exclusions in section 11A. As a result, the court awarded Chand weekly payments for incapacity for work from the agreed psychiatric injury.

Orders