Giannos v AGL Energy Limited - [2021] NSWPIC 179

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Giannos v AGL Energy Limited [2021] NSWPIC 179
APPLICANT:	Vanessa Giannos
RESPONDENT:	AGL Energy Limited
MEMBER:	Jane Peacock
DATE OF DECISION:	10 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Psychological Injury; dispute under section 11A of the 1987 Act; whether the applicant’s undisputed psychological injury was wholly or predominantly caused by the reasonable action of the employer in relation to performance appraisal; employer bears onus of proof; evidence weighed in the balance; Held- not satisfied on the balance of probabilities that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in relation to performance appraisal; worker not precluded from the recovery of compensation by reason of section 11A; award for the worker.
DETERMINATIONS MADE:	1. The respondent pay the applicant weekly compensation from 19 September 2019 to date and continuing at the applicable statutory maximum less $360, with the respondent to have credit for payments made. 2. The parties to have liberty to apply within 14 days as to the form of order 1. 3. The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts.

STATEMENT OF REASONS

By Application to Resolve a Dispute (the Application) Ms Vanessa Giannos (the applicant) seeks weekly compensation and compensation for medical expenses as a result of an alleged psychological injury deemed to have occurred on 19 September 2019.
The respondent is AGL Energy Limited. The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual NSW Limited (the insurer).

The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffered a psychological injury within the meaning of the Workers Compensation Act 1987 (the 1987 Act).
There is no dispute that the injury is deemed to have occurred on 19 September 2019.
The dispute relates to section 11A of the 1987 Act, that is whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal of the applicant.

There is a dispute before me that the employer’s actions in relation to performance appraisal were the whole or predominant cause of the applicant’s psychological injury.

There is also a dispute before me as to whether the employer’s actions taken in relation to performance appraisal were reasonable.

The applicant seeks a general order in respect of section 60 expenses. In the event the applicant is successful on the question of liability, the respondent consents to a general order being made in respect of section 60 expenses in favour of the applicant.
The applicant sought amendment of the Application to seek weekly compensation from the date of injury on 19 September 2019. The respondent consented to the amendment back to the date of injury on the proviso that, in the event the applicant was successful on liability, the respondent would have credit for payments…

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: [2021] NSWPIC 179
Decision Date: 10 June 2021

CaseChat Overview and Summary

The case of Giannos v AGL Energy Limited involved the applicant, Giannos, who claimed compensation for a psychological injury sustained while employed by AGL Energy Limited. Giannos sought compensation under the relevant workers' compensation legislation. The dispute centred on whether his psychological injury was wholly or predominantly caused by reasonable actions taken by his employer concerning a performance appraisal. This case was heard in the relevant court, which was tasked with determining the validity of Giannos's claim and the extent to which his employer was liable.

The central legal issue was whether the employer could successfully argue that the psychological injury suffered by Giannos was wholly or predominantly caused by a reasonable action taken in relation to a performance appraisal. This involved examining the balance of probabilities and the onus of proof. Specifically, the court needed to determine whether AGL Energy Limited could prove that the psychological injury was not predominantly caused by its reasonable actions. The court also considered whether section 11A of the 1987 Act precluded Giannos from recovering compensation for his psychological injury.

The court meticulously weighed the evidence presented by both parties. It found that the employer had not satisfied the onus of proof on the balance of probabilities that the psychological injury was wholly or predominantly caused by the reasonable action taken in relation to the performance appraisal. The court concluded that Giannos's psychological injury was not precluded from compensation under section 11A. Consequently, the court ruled in favour of Giannos, awarding him compensation for the psychological injury he sustained during his employment.

Orders