Favelle v NSW Rural Fire Service - [2023] NSWPIC 122

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Favelle v NSW Rural Fire Service [2023] NSWPIC 122
APPLICANT:	Robyn Favelle
RESPONDENT:	NSW Rural Fire Service
Member:	Rachel Homan
DATE OF DECISION:	27 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 36 and 37 as amended by the by the Workers Compensation Legislation Amendment Act 2012 in respect of a psychological injury; payments of weekly compensation already made on the basis that the applicant was an exempt worker; whether the applicant was a ‘firefighter’ for the purposes of clause 25 of Part 19H of Schedule 6; consideration of Ware v NSW Rural Fire Service; Held – applicant’s normal duties were administrative in nature and not that of a firefighter; although the applicant did on occasion attend the scene of fires, no event at or during a fire was causative of the injury; the injury was not received by a ‘firefighter’; the 2012 amendments apply to the injury; award for compensation in favour of the applicant with credit for payments already made; no order as to costs.
determinations made:	1. The injury was not received by a “firefighter” for the purposes of cl 25 of Part 19H of Sch 6 the Workers Compensation Act 1987. 2. The respondent to pay the applicant weekly compensation in accordance with ss 36 and 37 of the Workers Compensation Act 1987, as amended and in force as at the date of injury, from 8 October 2021 to date and continuing. 3. The respondent to have credit for payments of weekly compensation already made in the period above. 4. No order as to costs.

STATEMENT OF REASONS

BACKGROUND

Ms Robyn Favelle (the applicant) was employed by the NSW Rural Fire Service (the respondent) as a District Coordinator.
The applicant sustained a psychological injury arising out of her employment, liability for which was accepted by the respondent’s insurer on 10 October 2022. The applicant claimed to have sustained the injury after being cross-examined at an Industrial Relations Commission (IRC) hearing and the subsequent online publication of an IRC decision in which negative comments about the applicant made by her Area Manager were transcribed.
Payments of weekly compensation were made by the insurer in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) in force prior to the amendments made by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), on the basis that the applicant was a ‘firefighter’ and therefore exempt from the amendments pursuant to the transitional provision in cl 25 of Pt 19H of Sch 6 to the 1987 Act.
On 4 November 2022, the applicant’s solicitor wrote to the insurer claiming that the applicant was not an exempt worker for the purposes of the 2012 amendments and that weekly compensation should be paid at the rate of 95% of her pre-injury average weekly earnings (PIAWE) for the first 13 weeks and thereafter at the rate of 80% of PIAWE.
On 1…

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: [2023] NSWPIC 122
Decision Date: 27 March 2023

CaseChat Overview and Summary

The applicant, Favelle, brought an action against the NSW Rural Fire Service for weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012. The claim was for compensation in respect of a psychological injury sustained during the course of employment. Favelle had been paid weekly compensation on the basis that they were an exempt worker. The central issue was whether Favelle was considered a 'firefighter' for the purposes of clause 25 of Part 19H of Schedule 6 of the Act. This question was influenced by the previous case of Ware v NSW Rural Fire Service.

The court considered the nature of Favelle's duties, which were predominantly administrative rather than firefighting activities. Although Favelle occasionally attended the scene of fires, the psychological injury in question did not arise from any event at or during a fire. Consequently, Favelle did not meet the criteria of being a 'firefighter' as defined in the legislation. The court found that the 2012 amendments to the Act applied to Favelle's injury, making them eligible for the compensation claim. The court awarded Favelle compensation, taking into account the payments already made, and made no order as to costs.

Orders