Nand v Toll Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Nand v Toll Transport Pty Ltd [2022] NSWPIC 595

APPLICANT:

Rohitendra Nand

RESPONDENT:

Toll Transport Pty Ltd

Member:

Cameron Burge

DATE OF DECISION:

26 October 2022

CATCHWORDS:

WORKERS COMPENSATION - Claim for permanent impairment compensation in relation to alleged psychological injury; whether applicant suffered a psychological injury; if so, whether that injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline and/or dismissal; Held – the applicant suffered a psychological injury in the course of his employment to which his employment was the main contributing factor; Attorney General’s Department v K and State Transit Authority of NSW v Chemler followed and applied; the causes of the applicant’s injury were multi-factorial including matters which in no way relate to the issues which the respondent raises in support of its defence under section 11A of the Workers Compensation Act 1987 (1987 Act); the respondent’s defence under section 11A of the 1987 Act is not made out; the matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the psychological injury.

determinations made:

1.     The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 3 April 2020.

2.     The applicant’s employment with the respondent was the main contributing factor to the injury.

3. The respondent's defence pursuant to s 11A of the Workers’ Compensation Act 1987 is not made out.

4.     The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following:

Date of injury: 3 April 2020 (deemed);

Body systems claimed: psychiatric/psychological injury, and

Method of assessment: whole person impairment.

5.     The documents to be referred to the Medical Assessor to assist with their determination to include the following:

(a)    this Certificate of Determination and Statement of Reasons;

(b)    Application to Resolve a Dispute and attachments;

(c)    Reply and attachments, and

(d)    respondent’s Application to Admit Late Documents dated 15 September 2022 and attachments.

STATEMENT OF REASONS

BACKGROUND

1. Rohitendra Nand (the applicant) was employed by Toll Transport Pty Ltd (the respondent) as a truck driver for approximately four to five years from approximately 2015.

2. The applicant alleges that during the course of his employment he suffered a psychological injury as a result of ongoing interpersonal difficulties together with bullying, repetitive use of profane and derogatory language, racial slurs, aggressive behaviour and exclusionary tactics. A number of the allegations also relate to the approach of co-workers to the applicant wearing a mask during the COVID 19 pandemic.

3. The respondent denies liability, alleges the applicant did not suffer a psychological injury and says if he did, it was wholly or predominantly caused by the respondent's reasonable action taken with respect to performance appraisal, discipline and/or dismissal.

4. The applicant had previously brought proceedings with respect to this injury, which were dealt with in Consent Orders in January 2021…