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Whittard v TAFE NSW

Whittard v TAFE NSW

Case [2022] NSWPIC 218 16 May 2022

Workers Compensation Law

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Whittard v TAFE NSW [2022] NSWPIC 218
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:	4. 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. 5. 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

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

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.

Continue reading Whittard v TAFE NSW

Details

AGLC: Whittard v TAFE NSW [2022] NSWPIC 218
Case: [2022] NSWPIC 218
Decision Date: 16 May 2022

CaseChat Overview and Summary

The applicant, Mr. Whittard, filed a claim for compensation against TAFE NSW, alleging that he sustained a psychological injury due to bullying and harassment by his supervisor at work. The dispute was heard by the Workers Compensation Commission of New South Wales. Mr. Whittard sought compensation for a permanent impairment lump sum under section 66 of the Workers Compensation Act 1987. TAFE NSW contested the claim, asserting that the applicant’s employment was not the main contributing factor to his psychological injury and that any injury sustained was caused by reasonable actions taken by the employer in relation to performance appraisal or discipline.

The court had to determine whether Mr. Whittard's psychological injury was sustained pursuant to sections 4(a), 4(b)(i) and 9A of the 1987 Act, and whether the employer's actions fell under section 11A(1) of the 1987 Act. Specifically, the court had to decide if the injury was caused by reasonable actions taken or proposed to be taken by the employer regarding performance appraisal or discipline. The court thoroughly examined the evidence presented by both parties and the statutory provisions relevant to the case.

The Workers Compensation Commission of New South Wales found that Mr. Whittard had sustained a compensable psychological injury pursuant to section 4(b)(i) of the 1987 Act. The court concluded that the psychological injury was not wholly or predominantly caused by reasonable actions taken by the employer with respect to performance appraisal or discipline. Consequently, the matter was referred to the President of the Commission for referral to a Medical Assessor to determine the whole person impairment. This determination will be critical in assessing the quantum of compensation payable to Mr. Whittard.

Orders