Lee v Toll Global Express Parcels - [2022] NSWPIC 192

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lee v Toll Global Express Parcels [2022] NSWPIC 192
APPLICANT:	Frazer Lee
RESPONDENT:	Toll Global Express Parcels
MEMBER:	Rachel Homan
DATE OF DECISION:	2 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation in respect of psychological injury due to “bullying and harassment”; factual dispute as to alleged workplace events; whether adequate history provided to treating practitioners and applicant’s medicolegal expert; contemporaneous evidence of concurrent personal stressors, performance management action and possible workplace restructuring inadequately addressed in applicant’s evidence; lack of particularity as to events relied upon; Held- weighing the evidence, the applicant failed to discharge his onus of establishing that employment was the main contributing factor or a substantial contributing factor to the injury; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Frazer Lee (the applicant) was employed by Toll Global Express Parcels (the respondent) as a truck driver. The applicant claims that he sustained a psychological injury due to instances of bullying and harassment in the course of his employment with the respondent.
Liability for the alleged injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 October 2021. That decision was maintained following internal review pursuant to s 287A of the 1998 Act on 19 November 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 24 November 2021. The applicant seeks weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 12 November 2021, on an ongoing basis.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 1 March 2022. The applicant was represented by Mr Craig Tanner of counsel, instructed by Mr Andrew Tohme. The respondent was represented by Mr Brendan Jones of counsel, instructed by Ms Mihaela Mitreva. A representative from the insurer was also present.
During the conciliation conference, the applicant sought to amend the ARD to include a claim for s 60 expenses by way of a general order. That application was opposed although it was agreed that a determination favourable to the applicant would entitle him to compensation in accordance with the terms of s 60 of the 1987 Act.
Agreement was reached that the applicant’s pre-injury average weekly earnings (PIAWE) figure was $1,390.11.
Determinations were made with regard to a number of late documents sought to be admitted by the parties including a desktop search and surveillance report lodged by the respondent. Ultimately, the admission of the late documents was not opposed on the basis that leave was granted to the applicant to adduce oral evidence in response to the late material. Leave was also granted to the parties to serve and lodge supplementary reports from their medical experts addressing the late material together with any supplementary written submissions. The parties were advised…

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: [2022] NSWPIC 192
Decision Date: 2 May 2022

CaseChat Overview and Summary

The case of Lee v Toll Global Express Parcels involved a claim for weekly compensation for psychological injury due to alleged bullying and harassment in the workplace. The dispute was heard and determined by the NSW Workers Compensation Commission. The applicant sought compensation for the psychological injury, asserting that the bullying and harassment experienced in the workplace were the primary cause. The respondent denied the allegations and argued that other factors contributed to the applicant's condition.

The primary legal issues before the Commission were whether the applicant had provided an adequate history of the alleged events to the treating practitioners and the applicant's expert, and whether the applicant had discharged the onus of proving that employment was the main contributing factor or a substantial contributing factor to the psychological injury. The Commission had to consider the contemporaneous evidence of concurrent personal stressors, performance management actions, and workplace restructuring, and whether these factors were adequately addressed in the applicant's evidence. Additionally, the Commission needed to determine if there was a lack of particularity in the events relied upon by the applicant.

The Commission found that the applicant had not provided an adequate history of the alleged events to the treating practitioners and the applicant's expert. The contemporaneous evidence of concurrent personal stressors, performance management actions, and workplace restructuring were inadequately addressed in the applicant's evidence. The Commission also found that there was a lack of particularity as to the events relied upon. Weighing the evidence, the Commission concluded that the applicant had failed to discharge the onus of establishing that employment was the main contributing factor or a substantial contributing factor to the injury. Consequently, the Commission dismissed the applicant's claim and awarded costs to the respondent.

Orders