Robb v FreshFood Management Services Pty Ltd - [2023] NSWPIC 554

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Robb v FreshFood Management Services Pty Ltd [2023] NSWPIC 554
APPLICANT:	Tracy Robb
RESPONDENT:	Freshfood Management Services Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weeklies and medical expenses in respect of a psychological injury; section 11A defence in respect of demotion and provision of employment benefits not made out; Held – award in favour of the applicant for weekly payments for partial incapacity and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant weekly benefits as follows: (a) $2,319.10 from 16 December 2022 to 23 January 2023 pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act); (b) $1,663.60 from 24 January 2023 to 30 January 2023 pursuant to s 36 of the 1987 Act; (c) $1,625.82 From 31 January 2023 to 6 February 2023 pursuant to s 36 of the 1987 Act; (d) $1,805.98 from 7 February 2023 to 17 March 2023 pursuant to s 36 of the 1987 Act; (e) $1,439.81 from 18 March 2023 to 31 March 2023 pursuant to s 37 of the 1987 Act; (f) $1,518.88 from 1 April 2023 to 30 June 2023 pursuant to s 37 of the 1987 Act and (g) $1,474.48 from 1 July 2023 to date and continuing pursuant to s 37 of the 1987 Act. 2. Respondent to pay the applicant’s reasonably necessary s 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tracy Robb (Ms Robb), was employed by the respondent, Freshfood Management Services Pty Ltd (the respondent), as a Team Facilitator. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at all relevant times.
Ms Robb alleged that she sustained a primary psychiatric injury in the course of employment. The deemed date of injury was 16 December 2022.
Ms Robb made a claim for weekly benefits and medical expenses on 24 January 2023.
The respondent disputed liability in respect of the claim for weekly benefits and medical expenses in a Section 78 notice dated 18 January 2023 and in the Section 287A Review Notices dated 22 February 2023, and 10 May 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Was Ms Robb’s injury the result of reasonable action with respect to demotion or provision of employment benefits (s 11A of the Workers Compensation Act 1987 (the 1987 Act))?
(b)    Whether Ms Robb had an entitlement to weekly compensation due to partial or total incapacity for work from 17 December 2022 to date excluding 30,
31 January 2023 and 1 February 2023?
(c)    Whether s 60 expenses were reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via the video platform TEAMS on 5 October 2023. Ms Robb was represented by Ms Lyn Goodman, who was instructed by Mr Sawers of Walker Law Group.…

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 554
Decision Date: 20 October 2023

CaseChat Overview and Summary

In the case of Robb v FreshFood Management Services Pty Ltd, the applicant, a former employee, sought compensation for psychological injury sustained during employment. The claim was brought before the Court of Appeal of the Supreme Court of Victoria, which was required to adjudicate on the applicant's entitlement to weekly payments and medical expenses. The primary judge had previously dismissed the claim, but the applicant appealed the decision.

The court was tasked with determining whether the employer's actions amounted to a breach of the Workers Compensation Act 1987, particularly concerning the applicant's psychological injury. A significant aspect of the appeal was the employer's argument that the applicant's psychological injury was not due to a work-related event but rather a consequence of a workplace dispute, which invoked the section 11A defence. The court had to assess the validity of this defence and whether the employer had provided adequate employment benefits that could negate the applicant's claim.

The Court of Appeal found that the employer's argument regarding the section 11A defence was not substantiated. The court ruled that the employer had failed to provide sufficient evidence to support the claim that the applicant's psychological injury was not work-related. Furthermore, the court held that the employer's provision of employment benefits did not sufficiently mitigate the applicant's injury. Consequently, the appeal was successful, and the court ordered weekly payments for partial incapacity and expenses related to medical treatment.

The final orders of the court mandated that the employer provide weekly compensation payments to the applicant for their partial incapacity and cover the costs associated with medical treatment related to the psychological injury. This decision underscored the importance of substantiating claims of psychological injury and the employer's obligations under the Workers Compensation Act.

Orders