Moran v Remondis Australia Pty Limited - [2021] NSWPIC 448

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moran v Remondis Australia Pty Limited [2021] NSWPIC 448
APPLICANT:	Miroslawa Moran (Zurawski)
RESPONDENT:	Remondis Australia Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	10 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury alleged when applicant transferred to her old post; no alteration in income; transfer necessity explained at meeting on basis that others in department let go, but employer desirous of keeping applicant’s services; applicant had been agitating for fresh contract including increased income, motor vehicle, computer and phone; psychological injury at her transfer admitted; whether applicant hired as a trial position; whether assumptions made by applicant’s medico-legal psychiatrist as to applicant’s past history established on the evidence; respondent eschewed reliance on its own medico-legal expert; s 11A of the Workers Compensation Act 1987 raised; whether injury caused by single event or whether respondent required expert evidence as to other alleged causes; whether procedure adopted by respondent reasonable in circumstances; Held - each case depends on its own facts; Hamad v Q Catering Limited, Shore v Tumbarumba Shire Council and BlueScope Steel Ltd v Markovski considered; applicant’s injury wholly and predominantly caused by transfer; applicant’s expert’s opinion not established as assumptions not proven; applicant’s credit in question; award respondent.
FINDINGS MADE:	1. The applicant suffered a psychological injury caused by the actions of the respondent with regard to her transfer. 2. The whole and predominant cause of the applicant’s injury were the respondent’s actions. 3. The actions of the respondent with regard to transfer were reasonable.
DETERMINATIONS MADE:	1. There will be an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Miroslawa Moran (Zurawski), the applicant, brings an action for weekly payments of compensation against Remondis Australia Pty Limited, the respondent in respect of a claim for psychiatric injury said to have been caused on a deemed date of 31 March 2021.
Dispute notices were issued. An Application to Resolve a Dispute (ARD) was lodged followed by the Reply.
Ms Moran advised that she had subsequently changed her surname to Zurawski and I accordingly amend the ARD to reflect that change. I shall refer to the applicant as Ms Zurawski in these reasons.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Was the applicant’s psychological injury wholly or predominantly caused by the actions of the respondent with respect to transfer and/or the provision of employment benefits?
(b) If so, were the actions by the respondent reasonable?

PROCEDURE BEFORE THE COMMISSION

This matter was heard by way of video link on 15 September 2021. The applicant was represented by Mr Craig Tanner of counsel instructed by Mr Andrew Tohme from Messrs Santone Lawyers. The respondent was represented by Mr Allen Parker instructed by Ms Diane Pritchard of Messrs Moray & Agnew Lawyers. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours…

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 448
Decision Date: 10 November 2021

CaseChat Overview and Summary

In the case of Moran v Remondis Australia Pty Limited, the applicant, Moran, sought compensation for a psychological injury she alleged was caused by her transfer to her previous position within the respondent company, Remondis Australia Pty Limited. The matter was heard in the Workers Compensation Court of New South Wales. Moran claimed that the transfer, which occurred without any change in her income, was the cause of her psychological injury. She had previously been agitating for a new contract that included increased income, a motor vehicle, a computer, and a phone.

The court was tasked with determining several legal issues. It needed to establish whether Moran had been hired in a trial position, assess the assumptions made by her medico-legal psychiatrist about her past history, and determine whether the transfer was a reasonable procedure under the circumstances. Additionally, the court had to decide if the injury was caused by a single event or if the respondent needed expert evidence regarding other alleged causes of the injury. The respondent chose not to rely on its own medico-legal expert, and the court considered section 11A of the Workers Compensation Act 1987.

The court found that each case depended on its own facts and considered previous cases such as Hamad v Q Catering Limited, Shore v Tumbarumba Shire Council, and BlueScope Steel Ltd v Markovski. The court concluded that the applicant’s injury was wholly and predominantly caused by the transfer. However, the opinion of the applicant's expert was not established as the assumptions about her past history were not proven. The court also questioned the applicant's credibility. Consequently, the court awarded the respondent, dismissing the claim for compensation.

Orders