Li v Hamilton Island Shared Services Pty Ltd - [2024] NSWPIC 11

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Li v Hamilton Island Shared Services Pty Ltd [2024] NSWPIC 11
APPLICANT:	Tieshan (David) Li
RESPONDENT:	Hamilton Island Shared Services Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	9 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly and medical expenses following psychological injury on 31 January 2023; respondent relied on a section 11A defence in respect of performance appraisal, discipline and dismissal; Held – events on 31 January 2023 were not the whole or predominant cause of the applicant’s injury and events on 30 December 2022 and 12 January 2023 were causative workplace stressors as well as the events on 31 January 2023; respondent failed to discharge the onus to establish a section 11A defence; award for the applicant for weekly benefits and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. By consent, amend the Application to Resolve a Dispute (ARD) to add a claim for a general order for s 60 expenses. 2. Respondent to pay the applicant weekly compensation from 13 July 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act), based on a pre-injury average weekly earnings rate of $1,290 periodically adjusted in accordance with s 82A of the 1987 Act. 3. Respondent to pay the applicant’s reasonably necessary s 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tieshan (David) Li (Mr Li), was employed by the respondent, Hamilton Island Shared Services Pty Ltd (the respondent). Mr Li alleged that he sustained a primary psychiatric injury in the course of employment as a trade reservation consultant. The date of injury was 31 January 2023. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at all relevant times.
The respondent disputed liability in respect of the claim for weekly benefits in the s 78 Notice dated 28 June 2023 and the s 287A Review Notice dated 20 September 2023.
These proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) on 20 July 2023. The applicant sought weekly compensation from 8 June 2022 onwards.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) was Mr Li’s injury the result of reasonable action with respect to performance appraisal, discipline and/or dismissal (s 11A of the Workers Compensation Act 1987 (the 1987 Act))?
(b) Whether Mr Li had an entitlement to weekly compensation due to partial or total incapacity for work from 13 July 2023 to date and ongoing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via the video platform TEAMS on 7 December 2023. Mr Li was represented by Mr Jarryd Malouf, who was instructed by Mr Dawod of Law Partners Personal Injury Lawyers. The respondent was represented by Mr Andrew Combe, who was instructed by Ms Magan of Bartier Perry Lawyers. Ms McMahon from the respondent company attended the…

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: [2024] NSWPIC 11
Decision Date: 9 January 2024

CaseChat Overview and Summary

Li brought an action against Hamilton Island Shared Services Pty Ltd in the Workers Compensation Court of Queensland, seeking weekly benefits and medical expenses arising from a psychological injury sustained on 31 January 2023. The respondent employer argued that the applicant’s injury was not caused by the events on 31 January 2023, but rather by previous workplace events, and therefore sought to rely on a section 11A defence.

The court had to determine whether the events on 31 January 2023 were the predominant cause of the applicant’s psychological injury, and if not, whether the employer had discharged the onus of establishing a section 11A defence. The court considered evidence from medical experts and the parties’ submissions to resolve these issues.

In its judgment, the court found that the events on 31 January 2023 were not the predominant cause of the applicant’s injury, as there were also causative workplace stressors on 30 December 2022 and 12 January 2023. The court held that the employer had not discharged the onus of establishing a section 11A defence. Consequently, the applicant’s claim for weekly benefits and medical expenses was successful.

The court ordered that the respondent pay the applicant for weekly benefits and medical expenses related to the psychological injury sustained on 31 January 2023.

Orders