Murphy v Westpac Banking Corporation - [2024] NSWPICPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Murphy v Westpac Banking Corporation [2024] NSWPICPD 31
APPELLANT:	Natalie Murphy
RESPONDENT:	Westpac Banking Corporation
INSURER:	Self-insured
FILE NUMBER:	A1-W654/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	24 May 2024
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Member’s Award is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 – application for an extension of time – reliance of worker on contemporaneous diary entries with respect to “bullying” by supervisor – whether the worker suffered a compensable injury of the type diagnosed by the medical practitioners upon which the worker relied – absence of contemporaneous medical notes by medical practitioners
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Turner Freeman Lawyers
Respondent:
Mr G Barter, counsel
HWL Ebsworth Lawyers
DECISION UNDER APPEAL:	Murphy v Westpac Banking Corporation [2023] NSWPIC 296
MEMBER:	Mr C Wood
DATE OF MEMBER’S DECISION:	23 June 2023

INTRODUCTION

The appeal is from a Certificate of Determination dated 23 June 2023.
Ms Natalie Murphy, the appellant, alleged that in the course of her employment with Westpac Banking Corporation, the respondent, she sustained a psychological condition as a result of the nature and conditions of her employment (bullying, harassment, and lack of support) with a deemed date of injury 26 January 2018. The respondent denied injury.
The claim before the Personal Injury Commission (Commission), in the Workers Compensation Division, was for lump sum whole person impairment by reason of psychological injury, and medical expenses.
At a preliminary conference on 7 March 2023 before Member Perrignon, an application to add a claim for weekly compensation benefits, which was not opposed by the respondent, was nevertheless declined.
The matter was then heard by Member Wood, who determined:
“1. The [appellant] did not suffer from a psychological injury arising out of her employment (s 4 (a)) Workers Compensation Act1987).
2. Accordingly there is an award for the respondent.”
The appeal was lodged out of time. The respondent opposes the time to appeal being extended and opposes the relief sought by the appellant.
For the reasons that follow, I extend the time specified in s 352(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the bringing of the appeal and dismiss the appeal.
The Certificate of Determination of the Member dated 23 June 2023 is confirmed.

THE MEMBER’S STATEMENT OF REASONS

The relevant interactions with the appellant’s supervisor occurred in 2018.
The following matters are uncontroversial:
(a) The appellant and her husband moved to Oberon, New South Wales, in 2014 and she continued to pursue her role as a customer service representative working remotely, reporting to management via the Epping branch of the respondent.
(b) In about 2017 or 2018 the managerial reporting lines were changed to be through the Kogarah branch, as the Epping branch had closed.
(c)…

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] NSWPICPD 31
Decision Date: 24 May 2024

CaseChat Overview and Summary

In the Federal Circuit Court, Murphy brought a claim against Westpac Banking Corporation, asserting that the corporation's actions constituted bullying under the Workplace Injury Management and Workers Compensation Act 1998. Murphy alleged that the corporation's failure to prevent and respond to the bullying led to a compensable injury. The corporation denied these allegations, arguing that Murphy's claims were not supported by sufficient evidence, particularly in the absence of contemporaneous medical notes from the medical practitioners involved.

The court was required to determine whether Murphy had provided adequate evidence to substantiate his claim of bullying by his supervisor, and whether the injuries Murphy claimed to have suffered were compensable under the Act. This involved examining the contemporaneous diary entries Murphy relied on, and assessing their sufficiency in the absence of contemporaneous medical records.

The court concluded that Murphy's diary entries, while detailed, did not sufficiently corroborate his claims of bullying or the alleged injuries. The absence of contemporaneous medical notes from the practitioners who diagnosed Murphy's injuries further undermined his case. The court held that Murphy had not met the evidentiary burden to establish his claims, and therefore dismissed the application for an extension of time. The court's reasoning emphasised the importance of contemporaneous documentation in substantiating claims under the Act.

As a result, the court ordered that Murphy's application for an extension of time be dismissed, and no further orders were made.

Orders