Jansons v NSW Educational Standards Authority - [2021] NSWPIC 86

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jansons v NSW Educational Standards Authority [2021] NSWPIC 86
APPLICANT:	Paul Jansons
RESPONDENT:	NSW Educational Standards Authority
MEMBER:	Mr Anthony Scarcella
DATE OF DECISION:	19 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for permanent impairment compensation for primary psychological injury, where injury not disputed; section 11A(1) defence raised in respect to transfer, demotion or promotion; Northern NSW Local Health Network v Heggie [2013] NSWCA 225; Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465 (1999); 19 NSWCCR 181; Mani v Secretary, Department of Education [2021] NSWPICPD 3; and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 considered and applied; Held- the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to transfer, demotion or promotion within the meaning of section 11A(1) of the 1987 Act; the matter remitted to the President for referral to a Medical Assessor for assessment under the 1998 Act.
DETERMINATIONS MADE:	1. The respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to transfer, demotion or promotion within the meaning of section 11A(1) of the Workers Compensation Act 1987.
ORDERS MADE	2. The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 21 September 2018. Body System: Primary psychological injury. Method of Assessment: Whole Person Impairment. 3. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute dated 23 December 2020 and attached documents. (b) Reply dated 15 January 2021 and attached documents. (c) This Certificate of Determination and Statement of Reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Paul Francis Jansons, is a 45-year-old man who was employed by NSW Education Standards Authority (the respondent) as a Liaison Officer – Metropolitan, under secondment from the NSW Department of Education.
In the Application to Resolve a Dispute (ARD) filed in the Workers Compensation Commission, now being the Workers Compensation Division of the Personal Injury Commission (the Commission), Mr Jansons alleged that he was a victim of bullying and harassment in his usual place of employment with the respondent. He alleged that the bullying and harassment was in the form of discrimination in respect of his pre-existing Autism Spectrum Disorder (ASD) and resulted in him suffering a work-related primary psychological injury, namely, an adjustment disorder with depressed and anxious mood. He identified the date of injury as being 21 September 2018.
On a date that is not ascertainable on the evidence,…

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

AGLC: Jansons v NSW Educational Standards Authority [2021] NSWPIC 86
Case: [2021] NSWPIC 86
Decision Date: 19 April 2021

CaseChat Overview and Summary

In Jansons v NSW Educational Standards Authority, the applicant sought permanent impairment compensation for a psychological injury that was not in dispute. The respondent, however, raised a defence under section 11A(1) of the Workers Compensation Act 1987, asserting that the injury was predominantly caused by reasonable actions taken in relation to a transfer, demotion, or promotion. The dispute was heard by the Workers Compensation Commission of New South Wales, presided over by President N.

The primary legal issue was whether the respondent could successfully invoke the section 11A(1) defence, which exempts compensation claims if the injury was wholly or predominantly caused by actions taken in respect of employment changes. The court needed to determine if the respondent had met its onus of proving the defence on the balance of probabilities. Relevant cases, including Northern NSW Local Health Network v Heggie, Manly Pacific International Hotel Pty Ltd v Doyle, Mani v Secretary, Department of Education, and Kooragang Cement Pty Ltd v Bates, were considered to ascertain the applicability of the defence.

The court found that the respondent had not discharged the onus of proving the section 11A(1) defence on the balance of probabilities. The analysis of the evidence did not support the claim that the applicant's primary psychological injury was predominantly caused by the actions taken in relation to a transfer, demotion, or promotion. Consequently, the matter was remitted to the President for referral to a Medical Assessor for assessment under the Workers Compensation Act 1998.

Orders