Sfuncia v Waverly Council - [2021] NSWPIC 20

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sfuncia v Waverly Council [2021] NSWPIC 20
APPLICANT:	Gregorio Sfuncia
RESPONDENT:	Waverly Council
MEMBER:	Mr Philip Young
DATE OF DECISION:	12 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Psychological injury; several hostile events some in course of employment; perception of real events some episodes of exposure; Attorney General’s Department v K applied; predominate cause of injury given several episodes of exposure; Held- promotion issue but respondent’s section 11A case not established; award in favour of the applicant.
DETERMINATIONS MADE:	1. The applicant in the course of his employment with the respondent between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/or his perception of real hostile events. 2. The respondent’s section 11A defence is not established. 3. The applicant is entitled to awards as follows: (a) In respect of weekly payments of compensation from 12 March 2018 pursuant to section 36 of the Workers Compensation Act 1987 (1987 Act) for a period of 13 weeks. (b) Thereafter pursuant to section 37 of the 1987 Act to date and continuing with the relevant pre-injury average weekly earnings figure being $968.75 and with the respondent to receive credit for payments made. 4. A general order is made in favour of the applicant in respect of section 60 expenses. 5. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury deemed to have occurred on 12 March 2018. 6. The Delegate of the President is requested to place before the Medical Assessor a copy of the Application filed 22 December 2020 and attachments, a copy of the Reply filed 22 January 2021 and attachments, a copy of the Application to Admit Late documents and a copy of these Reasons for Decision. 7. Liberty is granted to the parties to apply by email to the Commission for further directions concerning the orders in 3. Above, if required.

STATEMENT OF REASONS

BACKGROUND

Greg Sfuncia (the applicant) is a 49 year old man who was employed by Waverley Council (the respondent). He alleges that he suffered psychological injury arising out of and in course in his employment. He claims weekly payments of compensation, medical expenses and a section 66 lump sum compensation payment in respect of whole person impairment.

ISSUES FOR DETERMINATION

There are several factual disputes in this matter about what did and did not occur. The applicant complains of aggressive conduct by a former supervisor and there is also an issue concerning the application of section 11A because the respondent says that the applicant’s injury was predominately caused by his failure to obtain a promotion.

PROCEDURE BEFORE THE COMMISSION

The matter came for conciliation and arbitration hearing on 22 February 2021 by teleconference. Mr C Tanner of counsel instructed by Ms S Bathgate appeared for and with the applicant. Mr G Barter of counsel instructed by Mr W Murphy appeared for…

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 Sfuncia v Waverly Council

Details

AGLC: Sfuncia v Waverly Council [2021] NSWPIC 20
Case: [2021] NSWPIC 20
Decision Date: 12 March 2021

CaseChat Overview and Summary

Sfuncia, a former employee, brought a claim against Waverly Council for workers' compensation, asserting that he suffered psychological injury due to a series of hostile events, some of which occurred during his employment. The court was tasked with determining whether the council was liable for the psychological injury, considering the nature and origin of the events that contributed to the applicant's condition. The primary issue was to establish whether the psychological injury arose out of, or in the course of, the applicant's employment and if the council was the predominant cause of the injury. The court had to consider the applicability of the principle from Attorney General’s Department v K, which deals with determining the predominant cause of injury from multiple episodes of exposure.

The court examined the nature of the hostile events and the applicant's perception of these events, distinguishing between real events and episodes of exposure. It applied the principle that where an employee experiences multiple incidents, the predominant cause must be identified to establish liability. The court found that while there were several hostile events, not all were in the course of employment. However, the council's conduct was a significant factor in the applicant's psychological injury. Despite this, the court held that the respondent's section 11A case was not established, as the applicant did not prove that the council's conduct was the predominant cause of the injury.

Consequently, the court awarded compensation to the applicant, acknowledging the council's role in contributing to his psychological injury but determining that the applicant had not met the burden of proof required to establish the respondent's liability under section 11A. The court's decision highlighted the importance of identifying the predominant cause in cases involving multiple incidents and exposure to hostile events. The final order was that the applicant was entitled to a compensation award, reflecting the council's contribution to his psychological injury.

Orders