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Pemberton v Woolstar Pty Limited

Pemberton v Woolstar Pty Limited

Case [2025] NSWPICPD 34 11 April 2025

Psychological Injury

Policy Failure

Sufficiency of Reasons

Medical Evidence

Causation

Workers Compensation Law

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Pemberton v Woolstar Pty Limited [2025] NSWPICPD 34
APPELLANT:	Lee Pemberton
RESPONDENT:	Woolstar Pty Limited
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-W9606/23
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	11 April 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 9 May 2024 is revoked. 2. The matter is referred to a different non-presidential member for determination of whether the appellant’s entitlement to compensation for psychological injury is extinguished by the operation of section 11A(1).
CATCHWORDS:	WORKERS COMPENSATION – psychological injury resulting from COVID-19 mask and vaccination policy; failure to respond to material argument: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 distinguished; Wang v State of New South Wales [2019] NSWCA 263 considered and applied; sufficiency of reasons for evaluative decision regarding reasonableness: rule 78 of the Personal Injury Commission Rules 2021; St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 considered and applied; failure to find date of injury; consequences of failure to adduce medical evidence on issue of whether injury was wholly or predominantly caused by actions within s 11A(1) of the Workers Compensation Act1987; Hamad v Q Catering Limited [2017] NSWWCCPD 6 distinguished
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Dodd, counsel
McCabe Partners Lawyers
Respondent:
Mr B Jones, counsel
BBW Lawyers
DECISION UNDER APPEAL:	Pemberton v Woolstar Pty Ltd [2024] NSWPIC 241
MEMBER:	The Honourable L Drake
DATE OF MEMBER’S DECISION:	9 May 2024

INTRODUCTION

This appeal concerns the application of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) to a claim for compensation for psychological injury arising from an employer’s COVID-19 policies.
Lee Pemberton (the appellant) was a long-term employee of Woolstar Pty Ltd (the respondent). At the time of the outbreak of the COVID-19 pandemic, he was employed at the respondent’s Wyong distribution centre (Wyong). On 4 September 2020, the respondent issued a directive that employees at Wyong wear face masks while at work. The appellant experienced nasal symptoms and headaches while wearing a mask. On 5 September 2020, he produced a medical certificate to the respondent and was granted an exemption from the mask policy.
On 5 January 2021, he was informed by a manager that the respondent would no longer recognise medical exemptions. He was asked to wear a mask or leave the premises.[1] He chose to cease work. Thereafter, the appellant did not work during periods when the wearing of masks at Wyong was compulsory.
[1] Application to Resolve a Dispute (ARD), p 14.
Following the reintroduction of the mask policy on 24 June 2021, the appellant ceased work.[2] He did not return to work for the respondent. On 14 January 2022, he was informed during a telephone conversation with an officer of the respondent that it was introducing a policy of compulsory vaccination. The appellant stated that he was not “comfortable to adhere to the policy”.[3]
[2] ARD,…

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.

Continue reading Pemberton v Woolstar Pty Limited

Details

AGLC: Pemberton v Woolstar Pty Limited [2025] NSWPICPD 34
Case: [2025] NSWPICPD 34
Decision Date: 11 April 2025

CaseChat Overview and Summary

In the matter of Pemberton v Woolstar Pty Limited, the court was presented with an appeal against a decision of the Personal Injury Commission regarding a claim for workers' compensation. The appellant, Pemberton, contended that he had sustained a psychological injury as a result of his employer's COVID-19 mask and vaccination policy. The legal dispute centred on whether the Commission had adequately addressed the arguments presented and made a reasoned evaluative decision in line with the statutory and procedural requirements.

The primary legal issues before the court were whether the Commission had failed to respond to material arguments and whether it had provided sufficient reasons for its evaluative decision. The court also examined whether the Commission had correctly identified the date of injury and whether the failure to adduce medical evidence had any consequences on the determination of whether the injury was caused by actions specified in section 11A(1) of the Workers Compensation Act 1987. The court considered precedent cases such as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, Wang v State of New South Wales [2019] NSWCA 263, St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, and Hamad v Q Catering Limited [2017] NSWWCCPD 6 in its analysis.

The court found that the Commission had indeed failed to respond to material arguments and had not provided sufficient reasons for its evaluative decision, in breach of rule 78 of the Personal Injury Commission Rules 2021. The court held that the Commission had not correctly identified the date of injury and that the absence of medical evidence had significant implications for the determination of causation under section 11A(1) of the Workers Compensation Act 1987. Consequently, the court allowed the appeal and remitted the matter back to the Commission for reconsideration in accordance with the proper legal and procedural standards.

The final orders of the court included a direction that the Commission consider the material arguments presented by the appellant, provide detailed reasons for its evaluative decision, correctly identify the date of injury, and assess the impact of the absence of medical evidence on the causation issue. The case was to be remitted back to the Commission for further proceedings.

Orders