Walgett Shire Council v Barden - [2023] NSWPICPD 81

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Walgett Shire Council v Barden [2023] NSWPICPD 81
APPELLANT:	Walgett Shire Council
RESPONDENT:	Christopher Barden
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A2-W585/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	14 December 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 8 December 2022, as amended by Barden v Walgett Shire Council [2023] NSWPICPD 80 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – fresh or additional evidence – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied – section 11A of the Workers Compensation Act 1987 – where there is insufficient acceptable medical evidence to establish that the injury was wholly or predominantly caused by reasonable action by the employer in respect to discipline or termination of employment – onus rests upon the employer – Commissioner of Police v Minahan [2003] NSWCA 239
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Hanrahan, counsel
Bartier Perry Lawyers
Respondent:
Mr P Stockley, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Whiffin
DATE OF MEMBER’S DECISION:	8 December 2022

INTRODUCTION AND BACKGROUND

Mr Christopher Barden (the respondent) was employed by Walgett Shire Council (the appellant) as an urban maintenance worker, operating from the Collarenebri depot. He commenced that employment in 2015.
The respondent alleged that, as a result of a number of events occurring in the course of his employment, he suffered a psychological injury. He ceased work on 12 April 2021 and lodged a claim for weekly payments and treatment expenses from that date, claiming that he had been bullied, harassed and unsupported by the appellant. The appellant declined the claim. The appellant asserted that the respondent did not suffer an injury as alleged, his employment was not a substantial contributing factor to any injury, or, if the injury was a disease, it was not contracted in the course of the respondent’s employment, and the employment was not the main contributing factor to the disease. The appellant further disputed liability on the basis that, if there was an injury, it resulted wholly or predominantly from reasonable action taken by the appellant with respect to discipline, performance appraisal, dismissal and provision of employment benefits in accordance with s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). The appellant also asserted that the respondent was not incapacitated for work and that any treatment expenses incurred by the respondent were not reasonably necessary as a result of a compensable psychological injury.
The respondent commenced proceedings in the Personal Injury Commission (the Commission). After some unfortunate procedural delays because of technical difficulties arising from the COVID-19 restrictions, the dispute came to an in-person arbitration before a Member of the Commission on 17 June 2022. The respondent gave oral evidence, and the parties were directed to lodge written…

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] NSWPICPD 81
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case of Walgett Shire Council v Barden, the plaintiff, Barden, sought to have his workers compensation claim upheld by the court. The defendant, Walgett Shire Council, argued that Barden's claim should be dismissed due to insufficient evidence. The matter was heard in the Workers Compensation Commission of New South Wales. The primary legal issue was whether the Council had presented adequate medical evidence to establish that Barden's injury was wholly or predominantly caused by actions taken by the employer regarding discipline or termination of employment. The case hinged on the interpretation and application of section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, and the related case law such as Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 and CHEP Australia Ltd v Strickland [2013] NSWCA 351.

The court considered that under section 11A of the Workers Compensation Act 1987, the onus of proof was on the employer to provide sufficient medical evidence to substantiate the claim that the injury resulted from actions taken in the context of discipline or termination. The court noted that the Commissioner of Police v Minahan [2003] NSWCA 239 case further reinforced this principle. After evaluating the presented evidence, the court found that the Council had not met its burden of proof. Consequently, the court ruled in favour of Barden, confirming that the employer's actions did not wholly or predominantly cause his injury, and thus, he was entitled to his workers compensation claim.

The court's decision was grounded on the insufficient medical evidence provided by the employer. The final orders of the court included the affirmation of Barden's workers compensation claim, with the Council bearing the costs of the proceedings. This ruling underscored the importance of the employer's responsibility to present adequate medical evidence when contesting a workers compensation claim.

Orders