One of the first decisions to be published by the new Personal Injury Commission (PIC) in relation to a workers compensation claim for psychological injury was determined on 22 March 2021. The case, Green v Secretary, Department of Regional NSW  NSWPIC 37, involved a claim for weekly benefits (a proportion of wages while off work) and medical treatment expenses after Ms Angela Green suffered a psychological injury at work.
Ms Green suffered a psychological injury after she experienced bullying, unfair treatment, harassment and intimidation at her place of work. She saw her GP and was found to have no capacity for employment from 28 May 2020.
When Ms Green made a claim, it was initially denied by the respondent in this case. One of its reasons for doing so, was that any psychological injury suffered by Ms Green was the result of reasonable actions taken by her employer.
Under s 11A of the Workers Compensation Act 1987 (NSW) (‘the 1987 Act’), an employee is not entitled to workers compensation for a psychological injury if that injury was suffered because of reasonable actions taken by their employer. Such reasonable actions must relate to:
- Performance Appraisal
- Retrenchment; or
In this case, Ms Green’s psychological injury occurred after her secondment in one role ended, and she defaulted back to her ordinary position – the respondent argued that this involved a “transfer”. Ms Green was experiencing a great deal of stress as a result of this due to the fact the role she was returning to was lower-paying but required more responsibility and involved higher-level duties. In considering whether the defence under s 11A would be successful, PIC Member Jacqueline Snell had to consider three main issues. All three of these “elements” of the defence must be established before it can be said that the defence is successful.
First, the Member needed to address whether the actions taken by Ms Green’s employer “wholly or predominantly caused” her psychological injury. After some consideration and noting the report of an independent medical examiner which confirmed Ms Green suffered an adjustment disorder as a result of the change in her position, it was determined that the action did wholly or predominantly cause Ms Green’s injury.
Second, Member Snell looked to the case of Manly Pacific International Hotel Ptd Ltd v Doyle  NSWCA 465 for guidance on the issue of whether the action taken constituted a transfer. This case involved consideration of what is meant by the word “transfer” in this context. It was decided that the word should be construed more broadly – a transfer does not need to involve a physical move in location, and a change in the nature and responsibilities of the work performed is likely to be of more importance. In that case, Mr Doyle’s change in position from a Larder Chef to a Saucier within the same kitchen was considered a “transfer”. As a result, Member Snell considered that the change in roles of Ms Green was a “transfer” for the purposes of s 11A.
Finally, the Member looked at whether the transfer was “reasonable” in the circumstances under the meaning of s 11A. The case of Northern New South Wales Local Health Network v Heggie  NSWCA 255 is important here. This case confirmed that when considering whether an action taken by an employer is “reasonable”, regard should be had to the “facts known to the employer at the time, or that could have been ascertained by reasonably diligent inquiries.” That is that a fact finder cannot take into account anything which the employer or person taking the action couldn’t have reasonably known at the time the action was taken, and must take into account relevant details which the person taking the action did or should have known at the time.
In this case, Member Snell considered that the need for the transfer and the requirement for Ms Green to return to her original position may in fact have been reasonable. The problem for the employer was that they were very aware that Ms Green was deeply upset about the transfer at the time, and yet made very little attempt to reassure, assist or accommodate her. As a result, the Member determined that, in all the circumstances known to the employer at the relevant time, the failure to reassure Ms Green or alleviate her concerns surrounding the transfer was not “reasonable” action (whether or not the need for the transfer itself may have been reasonable), and therefore the defence could not succeed.
This case offers a great overview of the operation of the defence under s 11A of the 1987 Act and can assist both injured workers and their solicitors in navigating this area of the law more fluently.
If you would like to know more about your rights regarding workers compensation, including a psychological injury you may have suffered in the workplace, we would be pleased to speak with you to advise you about your options. You can either book an appointment online or call us on (02) 4050 0330 to arrange an obligation-free consultation.