Lelov v Blacktown City Council - [2022] NSWPIC 93

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lelov v Blacktown City Council [2022] NSWPIC 93
APPLICANT:	Tony Lelov
RESPONDENT:	Blacktown City Council
MEMBER:	John Isaksen
DATE OF DECISION:	3 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses for psychological injury; whether worker sustained injury in the course of his employment; whether the worker sustained a disease injury pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987; reference to AV V AW; whether the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; reference to Hamad v Q Catering Ltd, Northern NSW Local Health Network v Heggie, and Irwin v Director General of School Education; whether the worker has had no current work capacity or a partial incapacity for work; Held – the worker’s employment was the main contributing factor to the aggravation of a psychological disease; the worker’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and the action that was taken was not reasonable; the worker has had no current work capacity as a result of the injury; award for weekly payments of compensation and medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent. 2. The deemed date of injury pursuant to section 16 (1)(a) of the Workers Compensation Act 1987 is 3 September 2020. 3. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987. 4. The applicant had no current work capacity from 3 September 2020 to 12 October 2020. 5. The applicant has had no current work capacity from 5 November 2020.
ORDERS MADE:	1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $999.29 per week from 3 September 2020 to 12 October 2020 pursuant to section 36 (1) of the Workers Compensation Act 1987; (b) $999.29 per week from 5 November 2020 to 23 December 2020 pursuant to section 36 (1) of the Workers Compensation Act 1987, and (c) $841.51 per week from 24 December 2020 to date and continuing to section 37 (3) of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Tony Lelov, the applicant in this dispute, claims that he sustained a psychological injury in the course of his employment with the respondent, Blacktown City Council as a result of interpersonal conflicts and unreasonable disciplinary action.
Mr Lelov ceased work due to his psychological injury on 3 September 2020. On that day he was required to answer a series of allegations regarding inappropriate behaviour towards other employees which were of a sexual nature.
Mr Lelov returned to work on or about 14 October 2020, but…

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 93
Decision Date: 3 March 2022

CaseChat Overview and Summary

Lelov v Blacktown City Council involved a claim by a worker for weekly payments of compensation and medical expenses for a psychological injury sustained during employment. The dispute was heard in the Workers Compensation Court of New South Wales. The central issue was whether the worker's psychological injury was sustained in the course of his employment, and whether it qualified as a disease injury under the Workers Compensation Act 1987. Additionally, the court had to determine if the injury was wholly or predominantly caused by reasonable disciplinary action taken by the employer, and whether the worker had any current work capacity as a result of the injury.

The court was required to consider the legal framework for determining disease injuries under the Workers Compensation Act 1987, specifically section 4 (b)(ii). It also needed to evaluate the relevance of precedents such as AV V AW, Hamad v Q Catering Ltd, Northern NSW Local Health Network v Heggie, and Irwin v Director General of School Education, in determining the reasonableness of the employer's disciplinary actions and their impact on the worker's psychological condition. The court assessed whether the employer's actions constituted a significant contributing factor to the aggravation of the worker's psychological disease.

The Workers Compensation Court concluded that the worker's employment was a main contributing factor to the aggravation of his psychological disease. The court found that the injury was not wholly or predominantly caused by reasonable disciplinary action by the employer, as the actions taken were deemed unreasonable. Furthermore, the court determined that the worker had no current work capacity due to the injury. Consequently, the court awarded the worker weekly payments of compensation and medical expenses.

Orders