| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Waverley Council v Sfuncia [2021] NSWPICPD 43 |
| APPELLANT: | Waverley Council |
| RESPONDENT: | Gregorio Sfuncia |
| INSURER: | StateCover Mutual Limited |
| FILE NUMBER: | A1-7547/20 |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| DATE OF APPEAL DECISION: | 3 December 2021 |
| ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 12 March 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – s 4(b) of the Workers Compensation Act 1987 – actions of co-worker towards worker – worker assaulted by co-worker – continued conduct of co-worker after their termination towards worker – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied – action of employer in respect of promotion – s 11A(1) of the Workers Compensation Act 1987 – contents of medical notes to be approached with care – Mason v Demasi [2009] NSWCA 227 applied – absence of complaints in records – Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr W Murphy, solicitor | |
| Bartier Perry | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Carroll & O’Dea Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr P Young |
| DATE OF MEMBER’S DECISION: | 12 March 2021 |
INTRODUCTION AND BACKGROUND
Mr Sfuncia (the respondent worker) was employed by Waverley Council as an “Open Spaces Officer”, commencing on 22 November 2016 and ceasing on 10 January 2019.[1] His role required him to work in a team maintaining parks and streets in Waverley Council.
[1] Letter of Termination, Application to Admit Late Documents (AALD), p 119.
The respondent worker claims workers compensation for a psychological injury as a result of a number of incidents occurring throughout the duration of his employment. These incidents involve harassment and intimidation from his team leader (Mr Baghadi[2]) which continued after Mr Baghadi left the employ of Waverley Council and resulted in criminal charges, as well as the failure to attain a promotion, and a delayed performance review with pay increase.
[2] Mr Baghadi’s name is spelt in various ways in the papers before the Commission. I have adopted the spelling in the police report/AVO as being more likely to be the correct spelling of this person’s name. No disrespect is intended.
StateCover, the insurer for Waverley Council, disputed liability for the respondent worker’s claim in a lengthy s 78 Notice dated 26 July 2018[3], affirmed in a s 287A Review Notice dated 17 July 2019.[4] Liability was disputed pursuant to ss 4 and 4(b) of the Workers Compensation Act 1987 (the 1987 Act), premised on a factual dispute as to the respondent worker’s allegations, and on the basis that the incidents involving Mr Baghadi following his termination did not arise out of, or in the course of the respondent worker’s employment. StateCover also raised a defence pursuant to s 11A(1) of the 1987 Act, in that the respondent worker’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Waverley Council with respect to a promotion.
[3] Application to Resolve a…
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- AGLC
- Waverley Council v Sfuncia [2021] NSWPICPD 43
- Case
- [2021] NSWPICPD 43
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CaseChat Overview and Summary
In the case of Waverley Council v Sfuncia, the primary dispute was over the causation of the respondent's psychological injury and whether the appellant could rely on a statutory defence under the Workers Compensation Act 1987. The case was heard in the Supreme Court of New South Wales, where the member's decision was reviewed for correctness. The appellant argued that the psychological injury was predominantly caused by the employer's reasonable actions regarding promotion and transfer, while the respondent contended that the injury was due to the actions of a co-worker who had harassed him before and after employment.
The court was tasked with determining the correct interpretation of Dr Ng's medical reports concerning the causation of the respondent's psychological injury. Specifically, the court needed to ascertain whether Dr Ng's opinion aligned with the statutory defence criteria under s 11A(1) of the Workers Compensation Act 1987. This involved examining the weight given to the various factors that contributed to the respondent's condition, including the harassment by a co-worker and the employer's actions regarding promotion and transfer. Additionally, the court had to consider the proper approach to the contents of medical notes and whether the absence of complaints in those notes should be treated as dispositive.
The court found that the member's interpretation of Dr Ng's reports was a fair and available construction, and the member did not err in concluding that Dr Ng's opinion indicated the respondent's psychological condition was predominantly caused by the lack of promotion and difficulties with Mr Baghadi. The court emphasised that the content of medical notes should be approached with care and that the absence of complaints in the notes should not be treated as dispositive. The court upheld the member's decision, finding that it was correct and that the appellant's appeal was without merit.
The final orders of the court were that the appeal be dismissed, with the appellant to pay the respondent's costs of the appeal. The court's decision reaffirmed the importance of a careful and nuanced interpretation of medical evidence in workers' compensation claims, particularly regarding the statutory defences available to employers.
The court was tasked with determining the correct interpretation of Dr Ng's medical reports concerning the causation of the respondent's psychological injury. Specifically, the court needed to ascertain whether Dr Ng's opinion aligned with the statutory defence criteria under s 11A(1) of the Workers Compensation Act 1987. This involved examining the weight given to the various factors that contributed to the respondent's condition, including the harassment by a co-worker and the employer's actions regarding promotion and transfer. Additionally, the court had to consider the proper approach to the contents of medical notes and whether the absence of complaints in those notes should be treated as dispositive.
The court found that the member's interpretation of Dr Ng's reports was a fair and available construction, and the member did not err in concluding that Dr Ng's opinion indicated the respondent's psychological condition was predominantly caused by the lack of promotion and difficulties with Mr Baghadi. The court emphasised that the content of medical notes should be approached with care and that the absence of complaints in the notes should not be treated as dispositive. The court upheld the member's decision, finding that it was correct and that the appellant's appeal was without merit.
The final orders of the court were that the appeal be dismissed, with the appellant to pay the respondent's costs of the appeal. The court's decision reaffirmed the importance of a careful and nuanced interpretation of medical evidence in workers' compensation claims, particularly regarding the statutory defences available to employers.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Question 9 that Dr Ng is asked to consider is very long and broken down into six constituent parts.[146] In answer to this question, Dr Ng finds as follows:“The issue that is not in dispute is the harassment from Mr [Baghadi] while he was employed and then once he was outside of employment of the Waverley Council …I note all the other factors have been maintained by Mr Sfuncia but they have all been disputed by the employer. If one is to assume that the Council’s witnesses’ evidence was to be preferred, then there would be no other factors except Mr Sfuncia's interactions with Mr [Baghadi].”[147] (emphasis added)[146] Reply, p 138.[147] Reply, p 139. Finally, Dr Ng says as follows:“Therefore, reasonable weight must be given to those factors which are in dispute in Q9. I certainly do not doubt that the effects of Mr [Baghadi] may have played some part in Mr Sfuncia's distress, but the final proximal precipitating factors would appear to be his difficulties with promotion and with Mr Jamie Francis.”[148] (emphasis added)[148] Reply, p 139. In Dr Ng’s third report, he is once again directed to the question regarding whether the worker’s psychological injury was predominantly caused by reasonable action taken by the employer with respect to promotion and transfer.[149][149] Reply, p 145, question 2. In response to this question, Dr Ng says “I have contacted you to clarify the factors to consider in this question.”[150] Obviously it is not possible to discern what transpired in this contact, but the doctor then states this:“Two factors were to be considered, that of the harassment by Mr [Baghadi] towards Mr Sfuncia, and Mr Sfuncia’s disappointment with his unsuccessful promotion.”[151][150] Reply, p 145.[151] Reply, p 145. Ultimately Dr Ng reaches the following views:“Therefore, based on objective documentation, one can reach the conclusion that Mr Sfuncia’s psychological injury was predominantly caused by his lack of promotion or transfer when asked to consider these two factors alone, his lack of promotion and the difficulties that Mr Sfuncia previously had with Mr [Baghadi].”[152][152] Reply, p 146. The appellant states that Dr Ng’s opinion was that the respondent’s psychological condition was predominantly caused by his failure to obtain promotion. The member found, at reasons [21], as I have described above, that Dr Ng’s opinion was to the effect that the psychological condition was predominantly caused by the lack of promotion and his difficulties with Mr Baghadi. On any fair reading of the passages that I have extracted above from Dr Ng’s reports, the Member was not in error in his description of Dr Ng’s opinion. As I have set out above from Dr Ng’s report at Reply p 139, Dr Ng did not doubt that Mr Baghadi may have played some part in Mr Sfuncia’s distress. It is quite clear that Dr Ng through his three reports took a detailed history and did not discount the effect that Mr Baghadi’s abhorrent behaviour had upon the respondent worker. Nowhere in Dr Ng’s reports does he discount the stressors introduced by Mr Baghadi. In his first report, Dr Ng thought that Mr Sfuncia’s psychological condition was mostly due to actions taken by the employer with respect to promotion, and in his second report he finds “the final proximal precipitating factors would appear to be his difficulties with promotion and with Mr Jamie Francis.” Neither of these descriptions vis-à-vis promotion satisfy the legal test required for the appellant to make out its s 11A defence. Clearly the appellant was alive to this fact, hence its request for Dr Ng to return to the matter in his third report. It was noteworthy that in the third report, Dr Ng based his opinion that Mr Sfuncia’s psychological injury was predominantly caused by his lack of promotion or transfer upon objective documentation. The documentation referred to is the medical notes from Marrickville Metro Medical Centre which do not record any complaint of psychological symptoms until 12 March 2018, that is, some months after Mr Baghadi’s employment had been terminated by the appellant. The appellant’s argument is that as a result of this gap, the obvious factor in the creation of Mr Sfuncia’s psychological condition is disappointment over his promotion. As I describe in [190] of this decision, the content of medical notes needs to be approached with care and further the absence of complaints should not be treated as dispositive, as Dr Ng has done in his third report. In any event, it is not an accurate summation of Dr Ng’s opinions that the respondent worker’s psychological condition was predominantly caused by his failure to obtain promotion. This is not a fair reading of the doctor’s reports and the Member was not in error to so find. The Member’s summation of Dr Ng’s opinion at reasons [21] was an entirely available reading and construction of the entirety of Dr Ng’s opinions.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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