Pham v Rentokil Initial Pty Ltd - [2024] NSWPIC 471

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pham v Rentokil Initial Pty Ltd [2024] NSWPIC 471
APPLICANT:	Van Tuyet Pham
RESPONDENT:	Rentokil Initial Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	27 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 33, 37, 60 and 66; section 11A(1) defence; accepted psychological injury; claim for permanent impairment lump sum compensation, weekly compensation, and medical and related expenses; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal; Held – applicant sustained a psychological injury due to numerous workplace incidents; injury not wholly or predominantly caused by reasonable action of employer related to performance appraisal; matter referred to Medical Assessor for assessment of whole person impairment; after issue of a Medical Assessment Certificate, matter to be relisted for conference to address the issue of weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. A defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (1987 Act) is not established. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 October 2022 Body parts: Psychological Method: Whole person impairment 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 25 July 2024 filed by the respondent (admitted into evidence by consent), and (d) complete copy of the report of Dr Assad Saboor dated 17 April 2024 containing an assessment of whole person impairment, filed pursuant to direction made on 19 August 2024. 4. The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge. 5. After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference before me to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Van Tuyet Pham (the applicant) was employed by Rentokil Initial Pty Ltd (the respondent) as a banking and allocation officer from 2016 to July 2023.
On or about 18 November 2022, the applicant reported an injury and initiated a claim for workers’ compensation for weekly compensation and medical and related expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act), in respect of depression and anxiety due to workplace bullying and harassment by her team leader, with a date of injury of 6 October 2022.
By letter dated 25 November 2022, the respondent’s insurer stated that it would pay the applicant weekly compensation for an initial period pursuant to s 36 of the 1987 Act and treatment expenses in respect of the injury.
By letter dated 21 March 2023 issued pursuant to s 78 of the 1987…

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 Pham v Rentokil Initial Pty Ltd

Details

AGLC: Pham v Rentokil Initial Pty Ltd [2024] NSWPIC 471
Case: [2024] NSWPIC 471
Decision Date: 27 August 2024

CaseChat Overview and Summary

Pham brought an action against Rentokil Initial Pty Ltd seeking compensation under the Workers Compensation Act 1987 for a psychological injury sustained in the course of her employment. The dispute was heard and determined in the Workers Compensation Court of Queensland. Pham alleged that her injury was caused by a series of workplace incidents, including bullying and harassment by a colleague, and a performance appraisal process which she found to be unreasonable and distressing. Rentokil Initial argued that Pham's injury was not compensable as it was wholly or predominantly caused by reasonable action taken by the employer with respect to the performance appraisal.

The court was required to determine whether Pham's psychological injury was compensable under the Workers Compensation Act, and if so, what compensation she was entitled to. The key issue was whether the employer's actions in conducting the performance appraisal were reasonable and whether these actions were the predominant cause of Pham's injury. The court considered the evidence and submissions from both parties and found that Pham's injury was due to a combination of factors, including the workplace incidents and the performance appraisal process. However, the court held that the employer's actions were not the predominant cause of the injury, and therefore the section 11A(1) defence did not apply.

The court referred the matter to a Medical Assessor for an assessment of Pham's whole person impairment and directed that once a Medical Assessment Certificate was issued, the matter would be relisted for a conference to address the issue of weekly compensation. The court did not make any orders in relation to medical and related expenses as these were to be determined following the assessment of Pham's impairment. The court held that Pham was entitled to compensation for her accepted psychological injury, and the matter was to proceed to the next steps in the compensation process.

Orders