Knezevic v Precision Valve Australia Pty Ltd - [2021] NSWPIC 405

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Knezevic v Precision Valve Australia Pty Ltd [2021] NSWPIC 405
APPLICANT:	Lucija Knezevic
RESPONDENT:	Precision Valve Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	12 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and section 60 expenses; psychological injury accepted for the purposes of sections 4 and 11A(3) of the Workers Compensation Act 1987; whether injury wholly or predominantly caused by reasonable action with respect to transfer; Canterbury Bankstown Council v Gazi and Manly Pacific International Hotel v Doyle considered; Held - respondent has not demonstrated that actions with respect to duration of the temporary transfer and the applicant’s ability to return to her original role were reasonable in all the circumstances; section 11A(1) defence not made out; respondent to pay weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	1. The respondent has not discharged the onus of establishing a defence pursuant to s 11A(1) of the Workers Compensation Act 1987. 2. From 30 January 2021 to date, the applicant has had no current work capacity as a result of the injury.
ORDERS MADE:	1. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 from 30 January 2021 to date, and continuing in accordance with the Workers Compensation Act 1987, based on the agreed pre-injury average weekly earnings figure of $1,164.15, as periodically indexed. 2. The respondent to pay the applicant’s reasonably necessary incurred s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Ms Lucija Knezevic (the applicant) was employed by Precision Valve Australia Pty Ltd (the respondent) when she sustained a psychological injury.

A claim for compensation was lodged on 1 February 2021 and, on 23 February 2021, a dispute notice was issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).

The respondent’s insurer disputed liability on the basis that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). As a result, the applicant was said to have no entitlement to weekly compensation and medical or related treatment expenses for the claimed injury.

The applicant sought internal review of that decision pursuant to s 287A of the 1998 Act and further dispute notices maintaining the decision to dispute liability were issued on 8 April 2021 and 25 June 2021.

The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 14 July 2021. The applicant seeks weekly compensation from 30 January 2021 on an ongoing basis as well as compensation for her incurred medical and related treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the injury…

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 405
Decision Date: 12 October 2021

CaseChat Overview and Summary

In the matter of Knezevic v Precision Valve Australia Pty Ltd, the applicant sought weekly compensation and section 60 expenses from the respondent for a psychological injury sustained during her employment. The dispute centred on the causation of the psychological injury and whether it was wholly or predominantly caused by a reasonable action taken with respect to the applicant's transfer. The case was heard in the Workers Compensation Claims Division of the District Court of New South Wales.

The primary legal issue before the court was whether the respondent had demonstrated that the actions taken with respect to the duration of the temporary transfer and the applicant's ability to return to her original role were reasonable in all the circumstances. The court examined the relevant provisions of the Workers Compensation Act 1987, including sections 4, 11A(1), and 11A(3), and considered the authorities of Canterbury Bankstown Council v Gazi and Manly Pacific International Hotel v Doyle. The court was required to determine whether the respondent had discharged the onus of proving that the injury was not caused by any act or omission of the respondent or a person acting on their behalf, or any other cause, to the same extent that it was caused by the injury described in the claim.

In delivering the judgment, the court found that the respondent had not demonstrated that the actions taken with respect to the duration of the temporary transfer and the applicant's ability to return to her original role were reasonable in all the circumstances. The court held that the applicant's psychological injury was not wholly or predominantly caused by a reasonable action taken with respect to the transfer, and that the section 11A(1) defence was not made out. Consequently, the respondent was ordered to pay weekly compensation and section 60 expenses to the applicant.

Orders