Murphy v Westpac Banking Corporation - [2023] NSWPIC 296

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Murphy v Westpac Banking Corporation [2023] NSWPIC 296
APPLICANT:	Natalie Murphy
RESPONDENT:	Westpac Banking Corporation
Member:	Christopher Wood
DATE OF DECISION:	23 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses and lump sum compensation for whole person impairment by reason of psychological injury; whether the applicant had a psychological injury arising out of her employment with the respondent; sections 4(a), 9A and 11A(3); lack of evidence from applicant supporting claims of bullying and harassment by supervisor and lack of contemporaneous medical evidence detailing presentation with psychological symptoms; Held – absence of evidence and unreliability of applicant’s diary notes made retrospective diagnosis by treating and medico-legal practitioners unreliable; failure to discharge onus of proof; award for the respondent; Nguyen v Cosmopolitan Homes and Lyons v Master Builders Assoc referred to.
determinations made:	1. The applicant did not suffer from a psychological injury arising out of her employment (s 4A Workers Compensation Act1987). 2. Accordingly there is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Natalie Murphy, is a 58 year old woman who was employed by the respondent from 2002 through its St George Bank division as a customer services representative.
The applicant and her husband moved to the town of Oberon, New South Wales, in 2014 and the respondent allowed her to continue in her role as a customer services representative working remotely, reporting to management via the Epping branch of the respondent.
In 2017 or 2018 the applicant’s managerial reporting lines were changed to be through the Kogarah branch as the Epping branch had been closed. The applicant says that she noticed a shift in the work culture, atmosphere and approach during that time. She says that between 2017 and in particular throughout 2018 she had a series of interactions with her supervisor, she identifies as ‘Jacqueline’ , which caused her to feel unsupported. She found some interactions to be bullying and undermining in nature to the point where she felt threatened.[1] Her confidence dropped to the point where she sought legal advice as well as advice from her trade union. She says she did not report the matters which concerned her apart from one interaction with the respondent’s HR department or make a claim for workers compensation benefits at this time.
[1] Paragraphs 20 – 22 of the ARD.
In December 2018 the applicant was diagnosed with breast cancer which caused her to stop working from January 2019 until August 2021 while she underwent treatment. The applicant concedes this was a stressful time but says she had overcome the stresses of the treatment. On return to work she was only able to work for a short period because of flashbacks to her dealings with Jacqueline (who had since left the respondent’s employment) culminating in a “mental breakdown”.
The applicant first mentioned the matters she has identified as causing her psychological injury by way of formal claim on the respondent in…

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: [2023] NSWPIC 296
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the matter of Murphy v Westpac Banking Corporation, the applicant sought to recover medical expenses and a lump sum for whole person impairment due to a psychological injury sustained during her employment. The case was adjudicated in the relevant Australian court. The applicant alleged that her psychological injury was a result of bullying and harassment by her supervisor while working for the respondent, Westpac Banking Corporation.

The court was tasked with determining whether the applicant had indeed suffered a psychological injury arising from her employment, as defined under the Workers Compensation Act 1987. The key issues revolved around the sufficiency of the evidence provided by the applicant to substantiate her claims of bullying and harassment, and the adequacy of contemporaneous medical evidence detailing the manifestation of psychological symptoms. The applicant's case relied heavily on her diary notes and retrospective diagnoses, which the court found to be unreliable due to their lack of substantiation and contemporaneous validation.

The court ruled that the applicant had failed to discharge the onus of proof required to substantiate her claims. The absence of reliable evidence linking the alleged psychological injury to the employment circumstances precluded the court from awarding compensation. The court referenced the cases of Nguyen v Cosmopolitan Homes and Lyons v Master Builders Assoc to underscore the importance of contemporaneous evidence in such claims. Consequently, the court dismissed the applicant's claims and awarded costs to the respondent.

Orders