Spicer v Tamworth Regional Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Spicer v Tamworth Regional Council [2025] NSWPIC 198
APPLICANT:	Gregory Spicer
RESPONDENT:	Tamworth Regional Council
MEMBER:	Cameron Burge
DATE OF DECISION:	12 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; whether wholly or predominantly caused by reasonable actions of employer with respect to transfer and/or provision of employment benefits; applicant suffered a psychological injury in the course of his employment for which liability was declined based on section 11A; claims weekly benefits and permanent impairment compensation; respondent alleged the applicant’s injury was wholly or predominantly caused by its reasonable actions; Held – the totality of the evidence demonstrates the causes of the applicant’s injury were multi-factorial; neither transfer nor the provision of employment benefits has been demonstrated to have been the whole or predominant cause of the injury; defence under section 11A must fail and the permanent impairment claim remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. By consent, leave is granted to the applicant to amend the deemed date of injury to 25 March 2022. 2. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 25 March 2022. 3. The applicant's injury was not wholly or predominantly caused by the reasonable actions of the respondent with regards to transfer and/or the provision of employment benefits. 4. The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 25 March 2022. Body systems referred: psychological injury. Method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with their determination are 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) applicant’s Application to Lodge Additional Documents dated 18 February 2025 and attachments. 6. The claim for weekly compensation is to be listed for further preliminary conference before me upon the issuing of the Medical Assessment Certificate. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

There is no issue the applicant, Gregory Spicer, suffered a psychological injury in the course of his employment with the respondent, Tamworth Regional Council with a deemed date of injury of 25 March 2022.
The applicant brings proceedings seeking payment of permanent impairment compensation and weekly benefits by the respondent. The respondent denies liability pursuing to s 11A of the Workers' Compensation Act 1987 (the 1987 Act) on the grounds the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions with regards to either transfer and/or the provision of employment benefits.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant's injury was wholly or predominantly caused by the reasonable actions of the respondent in relation to transfer and/or the provision of employment benefits, and
(b) the applicant's capacity for employment.
The applicant submitted the claim for weekly compensation should be deferred until after the primary liability question was determined and, where applicable, the issuing of any Medical Assessment Certificate (MAC). That application was opposed by the respondent, who noted the period of weekly benefits claimed as they closed a period ending on 30 June 2023.
After hearing from both parties during the conciliation phase, the commission determined that the claim for weekly benefits would be deferred until after the determination of the primary liability matter, as notwithstanding, the weekly period claimed had ceased, there was still a risk of inconsistent decisions being issued if the matter proceeded to medical assessment after the Personal Injury Commission (Commission) had made findings in relation to aspects of the applicant's incapacity, Jaffarie v Quality Castings Pty Ltd [2014] NSWCCPD 79.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 28 April 2025. At the hearing, the applicant was represented by Mr A Parker of counsel, instructed by Mr Griffith. The respondent was represented by Mr B Jones of counsel, instructed by Mr Van den Hout.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    applicant's Application to Lodge Additional Documents (ALAD) and attachments dated 18 February 2025.

Oral evidence

No oral evidence was called hearing. Mr Jones made a preliminary application to cross-examine the applicant in relation to questions relating to the weekly benefits claim. Given the Commission’s ruling to defer that aspect of the matter until the primary liability question and, where applicable, medical assessment has taken place, the cross-examination did not take place, and no determination was made as to whether leave would be granted.

FINDINGS AND REASONS

The defence pursuant to s 11A of the 1987 Act

There is no issue the applicant suffered a work-related psychological injury. The only question for determination is whether the respondent has a complete defence pursuant to
s 11A of the 1987 Act. That section relevantly provides:
“(1) No compensation is payable under this act in respect of an injury that is a psychological injury. If 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 transfer, … or provision of employment benefits to workers.”
An employer which seeks to make out a defence pursuant to s 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
The defence under s 11A contains two limbs. The first is that the conduct relied on by the respondent must be the whole or predominant cause of the relevant injury. Additionally, if that requirement is satisfied, the conduct relied on must also be reasonable. The test is conjunctive, and it is insufficient for a respondent to satisfy only one of the requirements in the defence.
“Wholly” and “predominantly” are separate concepts. In Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130 (Smith), an arbitrator made a finding the subject injury was “wholly or predominantly” caused by action taken by the respondent employer. Snell ADP (as he then was) said at [62] the concepts “wholly” and “predominantly” are different, and if such findings were to be made “it needed to be one or the other.”
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused.” The test of causation to be applied is that set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). That is, one needs to undertake a common-sense evaluation of the causal chain, examining both lay and medical evidence, to determine whether the requirement for whole or predominant cause has been met.
In Hamad v Q Catering Ltd [2017) NSWWCCPD 6 (Hamad), the responding employer was unable, on the available evidence and in the absence of any medical evidence dealing appropriately with the topic, to discharge its owners improving the workers' psychological injury resulted wholly or predominantly from its reasonable action to be taken or proposed to be taken with respect to discipline.
The effect of the decision in Hamad is that reliance on factual material alone will not always be sufficient to make out a s 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event which has given rise to psychological injury.
In accordance with Hamad, medical evidence in a case such as the present one is required which addresses the relative causal contributions of competing factors before a finding as to whether the reasonable actions of a respondent wholly or predominantly caused the injury at issue. Prima facie, the respondent has complied with this requirement, as it has relied on the opinion of an Independent Medical Examiner (IME) in relation to the question of causation. Whether that material is sufficient to assist the respondent in discharging its onus of proof is, however, a separate question.
The respondent relies on actions taken in relation to transfer and provision of employment benefits.
The issue of transfer was the subject of the decision in Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465. In that matter, the term was held to include a move from one position to another, whether or not there was a change in location (per Fitzgerald JA). His Honour said one needs to examine the decision or proposal, or the manner in which the decision or proposal was communicated to the worker. Importantly, if the psychological injury results from the working conditions subsequent to the transfer, as opposed to the transfer itself, s 11A does not apply (per Davies AJA).
In this matter, the applicant has set out a number of issues in the course of his employment with the respondent, including some meetings which might broadly be classified as in the nature of discipline after an interaction with a member of the public whilst he was carrying out some slashing duties, and also some issues as to the quality of his work. Those discussions took place in or about April 2021. That conduct is not relied on by the respondent as part of its defence pursuant to s 11A, however, the applicant indicates they were matters of concern to him.
In about 2015, the applicant had begun to experience breathlessness in the course of his employment. He consulted with his General Practitioner (GP) at the time, who referred him to a respiratory specialist at which time the applicant was diagnosed with Chronic Obstructive Pulmonary Disease (COPD).
After his diagnosis, the applicant continued to work for approximately seven years with the respondent. He described his condition during this time as manageable, given that “I was working with the South crew and was able to navigate my work in such a way as to not overdo the physical aspects of it. In this way, I was able to avoid my COPD to become aggravated or exacerbated. If I ever had to take a break of approximately five minutes or so, for example, if I had been performing raking duties for an hour, there was never any issue with the South crew allowing me to take these breaks. I got on well with the crew and was also comfortable with my duties. As such, the COPD never became an issue for me in my work at that stage and I was able to continue with my work relatively unimpeded.”
In or about June of 2021, the applicant was required to move to the CBD crew from the South crew. The reason given by the respondent for the move was the South crew was being broken up because the attitudes within it were less than ideal. When the applicant was advised he was being moved to the CBD crew, he allegedly told his supervisor he had health issues, referring to the COPD. At this time, the applicant did not expand further on his health issues.
In his statement, the applicant said:
“In relation to my reference to health issues, I was aware that the CBD crew is required to work at a faster pace and to perform more manual tasks than I had been doing in my role with the South crew. I did not say anything about this during the meeting, but these were my own thoughts on the matter. Paul said in response to me referring to having health issues, single ‘that may be the case, but I've made the decision’. He then took the letter from the folder and slid this across the table to me. The letter confirmed the change being made in my transfer to the CBD crew.”
The applicant described his work with the CBD crew in the following terms:
“31. I found that once I started on the CBD Crew from early June 2021, my reservations about the work there were confirmed. In this respect, we started each morning at approximately 5am (my previous time with the South Crew had been 5.30am). We were generally required to perform duties including brush cutting of the regional playground in a confined timeframe of approximately 1 to 1.5 hours despite this area being the size of approximately two football fields. In the central town area of Tamworth, we were required to pick up rubbish and to weed or otherwise garden the roundabouts in the main street, all before people were out and about and trade for the day had started, which placed additional time pressures on us.
32.    Apart from me, the oldest member of the CBD Crew was 39, while all the others were younger than this. I was conscious of the fact that the rest of the crew were physically more fit and strong than I was given these age differences. I did my best to keep up with them, but I did have difficulties in this regard.
33.    The overall supervisor of this group was Adam Jone, who was mainly with the Sports section, while I was also supervised more directly from day to day by another worker named Travis (I do not recall his surname), with whom I got on well.
34.    For approximately the first two months of the CBD work, I kept up with it as best I could, although I was experiencing some difficulty. By about the third month, this being by approximately September 2021, I found that I was experiencing a lot of fatigue when performing this work. In addition, I was having to concentrate on taking one continuous breath through my mouth rather than through my nose in order to properly circulate oxygen for myself. I was also having to pause a lot during the workday because of this. Between approximately September and late October 2021 while working with the CBD crew, I experienced these symptoms on an approximately daily basis. On most of the days that this occurred, I made comments to Travis to the effect of ‘sorry, I can't keep up’ or ‘I just need to take a break’. On each occasion, Travis was very accommodating and gave responses to the effect of ‘Alright. Just take your time’. I did then take short breaks as required before continuing with my duties afterwards, but the same issues continued. These types of exchanges occurred between Travis and me almost daily during the time frame of September to October 2021, and he remained supportive and accommodating towards me throughout this time.”
The applicant stated that by approximately late October 2021, his difficulties and symptoms had almost doubled in effect. He describes experiencing chest pains while working in approximately late October 2021, and becoming emotional as a result, breaking down and crying when he mentioned this had occurred to Travis. The applicant states at [35] of his statement:
“[Travis] was again very supportive in his response, telling me to take the rest of the day off and to book an appointment with my doctor, also advising that he would arrange for someone to cover the rest of the shift for me. I was appreciative of this and did then take the rest of the day off.”
At approximately this time, the applicant consulted with his GP, Dr Chan and commenced three weeks annual leave from 15 November 2021. Following this, the applicant took carer’s leave to look after his wife.
On 31 December 2021, the applicant again consulted Dr Chan, at which time the applicant was issued with a medical certificate regarding his COPD condition and another to allow him to continue with his carers leave until the end of January 2022.
On 24 January 2022, the applicant submitted a medical certificate in respect of his COPD condition via text message. He was planning to return to work in or about late January 2022, however, on 27 January 2022, he took part in a telephone conversation with Messrs Kelly and Logan on behalf of the respondent who indicated given the contents of the COPD medical certificate, the applicant needed to delay returning to work until he underwent a respiratory test organised by the respondent.
The applicant asserts his former supervisors, Messrs Grant and Lillicrap were aware of his condition informally, however, until late 2021 and early 2022, the condition had not impacted the applicant's ability to carry out his duties.
The applicant underwent a respiratory test at the behest of the respondent on 25 February 2022. He had not received the results of that assessment when, on 14 March 2022, he consulted with his general practitioner at which time he was issued a medical certificate placing him on stress leave from that date for one month.
The applicant states he was then contacted by the respondent and asked what was going on in terms of his respiratory assessment. At that time, the applicant alleges he was told because he was on stress leave, his employer could not talk to him about the results.
On 27 April 2022, the applicant attended a meeting at the respondent's premises and recorded the contents of it with the consent of the other participants. At the meeting, Mr Kelly advised the applicant that given his COPD, the respondent needed more medical information in order to assess and decide how he could safely return to work. On 6 May 2022, the applicant participated in a medical appointment with a respiratory specialist via telehealth, arranged by the respondent.
The question of whether a category of conduct relied on by the by respondent to ground a defence under s 11A is the whole or predominant cause of a worker's injury is a question of fact and degree. In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), the Court of Appeal when dealing with the category of discipline in s 11A, was of the view a broad approach should be taken to the phrase “action with respect to discipline”. Whilst the decision in Heggie is factually distinct from the present matter, it remains relevant to the proper approach to be taken to determining s 11A of the 1987 Act. There is no warrant to be taken to depart from the approach taken in Heggie with respect to the category of transfer (or indeed the other categories in s 11A).
In the present matter, whilst the applicant had trepidation surrounding his transfer to the CBD crew, he nevertheless carried out his duties with them, which were substantially the same as those carried out in his previous role, albeit with additional time pressures placed upon him. The difference was largely in terms of the pace of work required in his new role. The applicant stated that as he continued in his role with the CBD crew, he found himself unable to keep up and, notwithstanding the supportive nature of his supervisor once he began to experience difficulties, it was the onset of his problems which led to what he described as his initial breakdown and anxiety.
Notwithstanding the broad context given to the notion of transfer, I am not of the view the whole or predominant cause of the applicant's psychological issues was the transfer itself. Rather, in my view, the evidence discloses the applicant's difficulties arose owing to the nature of the duties which he was required to perform after the act of transfer itself.

As Fitzgerald JA noted in Doyle, when examining the question of transfer, one needs to look at the decision or proposal or the manner in which the decision or proposal is communicated to the worker, and if the injury results from the working conditions subsequent to the transfer, as opposed to the transfer itself, s 11A(1)does not apply (per Davies AJA).
In my view, this is a case where the working conditions subsequent to the transfer were the whole or predominant cause of the applicant's difficulties rather than the act of transfer itself.
The respondents of IME, Dr Suman referred to incidents since approximately April 2021 being partly causative of the applicant's issues, including the meetings and the nature of discipline to which he was called around that time. Whilst this may indeed be true, there is no suggestion such meetings related to questions of transfer or the provision of employment benefits and are not conduct relied on by the respondent. Nevertheless, if Dr Suman’s opinion is accepted, it only reinforces the finding that the cause of the applicant’s injury was multi-factorial.
As Dr Chan noted in his report dated 4 May 2022:
“My understanding of the situation is that Greg's role at his workplace changed to a more physically demanding role with lawnmowing. This exacerbated his COPD and he reported chest pains, breathlessness, anxiety and panic attacks. Greg reported he attempted to discuss these issues with his workplace, to be moved back to his previous role as operator. This was reinforced by a standard medical certificate by myself. Greg reported that they did not facilitate for this and continue to have deteriorating physical symptoms. This exacerbated to the point that Greg felt psychologically he was not able to work any further until his concerns were addressed.”
The applicant's treating psychologist, Mr Moore also provided a report dated 12 August 2024. He noted the applicant's background working with the respondent for approximately 10 years. Mr Moore indicated the applicant's employment was the main contributing factor to his condition. In his report, Mr Moore said our number of factors as being potentially causative of the applicant's condition. That included struggling to work in a dusty environment and worsening breathing after being moved into a more physical demanding role.
In my view, Mr Moore's findings are consistent with the work post-transfer being a substantial cause of the applicant’s condition rather than the act of transfer itself. This view is supportive of the applicant’s own evidence, which is uncontested, that it was his duties over several months after he as transferred which led to the injury at issue, not the act or manner of the transfer itself.
In my view, the facts of this matter are such that respondent cannot rely on the onset of a psychological injury over a period of several months post-transfer as having been wholly or predominantly caused by the transfer itself. Were that the case, an employer would logically be able to assert any psychological injury in the workplace after a change of role or location was caused by the transfer, rather than other matters which took place in the workplace after the worker was placed in their new role.
As noted, the respondent bears the onus of proving the actions relied on by it were the whole or predominant cause of the injury at issue. Its IME, Dr Suman, says transfer was the whole or predominant cause, however, he does not set out the specific actions in the nature of transfer which he says are causative of the condition. Rather, Dr Suman gives a narrative of the applicant's issues and then notes, broadly, that it was predominantly the action of management to transfer him to work in the CBD crew which caused his psychological condition.
In my view, such reasoning is not sufficient to satisfy the requirement of proving whole or predominant cause, nor is it consistent with the applicant’s evidence that it was his duties over several months while working with the CBD crew which ultimately led to his injury, rather than the act of being transferred.
Few submissions at the hearing dealt with the provision of employment benefits as a cause of the applicant’s injury, beyond the factual matters which have been addressed in these reasons. As with the category of transfer, I am not satisfied on balance that employment benefits were the whole or predominant cause of the injury. Rather, the evidence discloses, as noted, the cause of the injury was multi-factorial and that the applicant’s duties with the CBD crew played a large part I the onset of his condition.
In the circumstances, the defence pursuant to s 11A must therefore fail.
Having found the respondent has not discharged its onus of proving whole or predominant cause, it is unnecessary for me to make findings in relation to the question of reasonableness, as the failure to satisfy the whole/predominant requirement renders the s 11A defence unsuccessful.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2025] NSWPIC 198

12 May 2025