Viney v Burwood Council

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Viney v Burwood Council [2021] NSWPIC 236

APPLICANT:

Guiseppina (Pina) Viney

RESPONDENT:

Burwood Council

MEMBER:

John Isaksen

DATE OF DECISION:

8 July 2021

CATCHWORDS:

WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses due to psychological injury; respondent relies upon section 11A defence that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and discipline; whether a Restorative Practice Process undertaken by the respondent was part of action with respect to discipline; reference to Northern NSW Local Health Network v Heggie; whether the worker has had no current work capacity or a partial incapacity for work; whether the respondent has credit for the payment of salary to the worker while suspended pending the outcome of a disciplinary investigation; reference to Kirkbride v State of NSW and Roads & Traffic Authority of NSW v Smith;  Held– action of respondent was not performance appraisal but did meet criteria for action with respect to discipline; section 11A defence not established as injury not wholly or predominantly caused by discipline; also part of action with respect to discipline not reasonable; award of weekly payments of compensation for a period of no current work capacity and then partial incapacity for work; no statutory power to re-credit the respondent for payments while worker suspended on full pay; award for medical expenses.

DETERMINATIONS MADE:

The Commission determines:

1.     The applicant sustained a psychological injury in the course of her employment with the respondent with a deemed date of injury of 8 November 2019.

2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987.

3.     The applicant had no current work capacity from 11 November 2019 to
28 February 2020 as a result of her injury.

4.     The applicant has had a partial incapacity for work since 29 February 2020 as a result of her injury.

The Commission orders:

1.     The respondent is to pay weekly payments of compensation to the applicant as follows:

(a) $2,088.60 per week from 11 November 2019 to 9 February 2020 pursuant to section 36 (1) of the Workers Compensation Act 1987;

(b) $1,758.80 per week from 10 February 2020 to 28 February 2020 pursuant to section 37 (1) of the Workers Compensation Act 1987;

(c) $1,297 per week from 29 February 2020 to 30 June 2020 pursuant to section 37 (3) of the Workers Compensation Act 1987;

(d) $1,285.40 per week from 1 July 2020 to date and continuing pursuant to section 37 (3) of the Workers Compensation Act 1987.

2.     I decline to make an order that there be credit to the respondent for any payments already made to the applicant.

3. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for her psychological injury pursuant to section 60 of the Workers Compensation Act 1987.

A brief statement is attached setting out the…