Dr AJ Oliver Pty Ltd v Brodie - [2024] NSWPICPD 71

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Dr AJ Oliver Pty Ltd v Brodie [2024] NSWPICPD 71
APPELLANT:	Dr AJ Oliver Pty Ltd
APPELLANT’S INSURER:	Employers Mutual NSW Limited
FIRST RESPONDENT:	Carol Anne Brodie
SECOND RESPONDENT:	Secretary, Department of Education
SECOND RESPONDENT’S INSURER:	Allianz - TMF
FILE NUMBER:	A1-W4961/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	5 November 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal the decision of Member Drake dated 5 December 2023 is refused. 2. The matter is remitted for referral for medical assessment in accordance with Order 6 of the Certificate of Determination dated 5 December 2023.
CATCHWORDS:	WORKERS COMPENSATION – s 352(3A) of the Workplace Injury Management and Workers Compensation Act1998 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms J Gair, solicitor
Gair Legal
First respondent:
Mr B McManamey, counsel
RMB Lawyers
Second respondent:
Ms K Balendra, counsel
Bartier Perry
DECISION UNDER APPEAL:	Brodie v Secretary, Department of Education & Ors [2023] NSWPIC 649
MEMBER:	Ms L Drake
DATE OF MEMBER’S DECISION:	5 December 2023

INTRODUCTION

The first respondent was employed by the second respondent as a TAFE teacher for a period of over 28 years. During the course of that employment, the first respondent sustained a psychological injury.
Subsequent to ceasing employment with the second respondent, the first respondent gained employment with the appellant as a receptionist, during which time she suffered a recurrence or an aggravation of the same injury.
The first respondent commenced proceedings in the Personal Injury Commission (the Commission) on 12 July 2023 claiming lump sum compensation in respect of 15% Whole Person Impairment (WPI) for her psychological injury.
The matter was listed for teleconference before Member Drake who issued a Direction for each party to lodge written submissions. This was in response to an argument raised by the appellant opposing any referral of the claim for medical assessment on the basis that there was no medical evidence implicating the appellant. After considering the written submissions of each party, Member Drake issued a Certificate of Determination dated 5 December 2023.
The appellant appeals from that decision.

THE MEMBER’S REASONS

The Certificate of Determination issued on 5 December 2023 records:
“1.     The [first respondent] was injured by way of a disease (psychological) in the employ of the [second respondent] and [the appellant].
2.     The injury is deemed to have occurred on the date of the claim made by the [first respondent] against the last relevant employer. As such the [appellant] is liable for the extent of that claim.
3.     The application by the [appellant] to amend the Application to Resolve a Dispute (ARD) to delete the [appellant] is refused.
4.     The report of Dr Chow is excluded by operation of regulation 44 and will not be provided to the Medical Assessor.
The Commission Orders:
5.     There will be an award for the [first respondent] against the [appellant] for a psychological injury incurred during the course of…

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] NSWPICPD 71
Decision Date: 5 November 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court, Dr AJ Oliver Pty Ltd, a medical practice, was sued by Brodie, a former employee, over the termination of her employment. Brodie argued that the termination was unlawful and that she was entitled to workers' compensation under section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. The court needed to determine whether the medical practice's decision to terminate Brodie's employment was justified and if she qualified for compensation under the relevant statute. The main legal issue was whether the termination was in compliance with the statutory provisions and the terms of Brodie's employment contract.

The court examined the evidence and arguments presented by both parties. It considered the terms of Brodie's employment contract, the medical practice's policies, and the statutory provisions governing termination and compensation. The court found that the medical practice had followed its policies and procedures in terminating Brodie's employment and that there was no breach of contract or statutory provisions. The court also found that Brodie did not qualify for compensation under section 352(3A) of the Act, as her termination was not due to a work-related injury or illness.

The court concluded that the medical practice's decision to terminate Brodie's employment was lawful and that she was not entitled to workers' compensation. The court dismissed Brodie's claim and ordered her to pay the medical practice's costs of the proceeding. The decision highlights the importance of following proper procedures and policies when terminating an employee's employment and the need for employees to establish their entitlement to compensation under the relevant statute.

Orders