Whittard v TAFE NSW

[2022] NSWPIC 275

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Whittard v TAFE NSW [2022] NSWPIC 275

APPLICANT:

Russell Whittard

RESPONDENT:

TAFE NSW

MEMBER:

Karen Garner

DATE OF DECISION:

16 May 2022

CATCHWORDS:

WORKERS COMPENSATION- Psychological injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); applicant alleged he sustained a psychological injury due to bullying and harassing behaviour at work by his supervisor; whether the applicant sustained an injury pursuant to sections 4(a), 4(b)(i) and 9A of the 1987 Act; respondent raised defence pursuant to section 11A(1) of the 1987 Act; whether the applicant’s employment was the main contributing factor to his psychological injury; whether the psychological 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 performance appraisal or discipline; Held– applicant sustained a compensable psychological injury pursuant to sections 4(b)(i) of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; matter referred to President for referral to a Medical Assessor for determination of whole person impairment.

DETERMINATIONS MADE:

1.     The applicant sustained a psychological injury in the course of his employment with the respondent on 8 May 2018 (deemed).

2.     The applicant’s employment was the main contributing factor to his injury.

3.     The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by on behalf of the respondent with respect to performance appraisal or discipline.

ORDERS MADE:

1.    I remit the matter to the President for referral to a Medical Assessor for assessment of the whole person impairment due to psychological injury with a deemed date of injury of 8 May 2018.

2.     The documents to be reviewed by the Medical Assessor are:

(a)   the Application to Resolve a Dispute and attached documents;

(b)   the Reply and attached documents;

(c)   Application to Admit Late Documents filed on behalf of the applicant, dated 5 April 2022, and

(d)   Application to Admit Late Documents filed on behalf of the respondent, dated 31 March 2022.

STATEMENT OF REASONS

BACKGROUND

1. Mr Russell Whittard (the applicant) was employed as a Work Health Safety Specialist by TAFE NSW (the respondent).

2. The applicant claims that he sustained psychological injury due to being subjected to bullying and harassment behaviour by the respondent’s Safety Manager, Linda Watts (Ms Watts) and by the respondent’s Head of Safety, James Jammo (Mr Jammo).

3. By notice dated 30 July 2018 issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Allianz Australia Insurance (the insurer) denied the applicant’s claim for weekly payments and medical expenses on the basis that:

   (a) it disputed the alleged psychological or psychiatric injury arises out of or in the course of the applicant’s employment within the meaning of s 4 of the