Clinical notes indicate knowledge of workers compensation process in the PIC

Gleeson v Health Services Union NSW [2023] NSWPIC 15

The Applicant alleged that she suffered a psychological injury in the course of her employment with the Respondent, Health Services Union of NSW. The Applicant was employed as a Union Organiser and alleged she was exposed to bullying and harassment, excessive workloads and unwarranted actions from other employees which caused her psychological injury.

The Applicant resigned from her employment on 11 December 2019, however she did not obtain a Certificate of Capacity until 25 June 2021. The Respondent disputed liability for the psychological injury on the basis the injury did not arise out of or in the course of her employment, employment was not the main contributing factor and that the Applicant had not given notice of her injury or made the claim for compensation within the legislative timeframes.

Issues for determination

Member Isaksen determined the following issues:

• Whether the Applicant can recover compensation despite notice not being given as soon as possible after the injury pursuant to section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
• Whether the Applicant can recover compensation despite a claim not being made within six months pursuant to section 261 of the 1998 Act;
• Whether the Applicant’s injury arose out of or in the course of employment; and
• The extent of any incapacity.

Determination

Dealing first with whether the Applicant was statutorily barred from recovering compensation, Member Isaksen highlighted that notice of injury was not given until about 18 months after the injury. Therefore, prima facie, compensation was not recoverable unless the Applicant could satisfy one of the special circumstances under section 254(3) of the 1998 Act. The parties did not address section 254 in any great detail, instead focusing upon section 261. As such, Member Isaksen found that the Respondent was not prejudiced by the failure to give notice as soon as the injury occurred.

Section 261 of the 1998 Act provides that compensation is not recoverable unless a claim had been made within 6 months of the injury. However, section 261(4) provides a number of exceptions. The Applicant submitted that the failure to bring the claim within 6 months was occasioned by ignorance and/or ‘other reasonable cause’.

The Applicant alleged that, despite her employment with a Union and her experience in employment law, she was ignorant of the legislative timeframes under workers compensation legislation. She said that in her employment with the Respondent, she was directed to not become involved with or provide any advice on workers compensation claims.

With respect to the ‘other reasonable cause’ aspect, the Applicant submitted that her GP made a comment that making a claim would not be beneficial to her health and recommended she try and “move on with her life”. The Applicant says that she was prompted to make a claim after being in contact with a former colleague in early to mid-2021. This colleague had apparently also experienced bullying and harassment and had an accepted claim. She alleges that a meeting with her solicitor on 22 June 2021 was the first time she was made aware of any timeframes to lodge a workers compensation claim.

Member Isaksen stated that the reliance on ‘ignorance’ under section 261 was a rather narrow and specific claim. Although the Applicant claimed that her role as a Union Organiser did not give her insight into workers compensation legislation, the Member found compelling evidence to the contrary. The clinical notes from the Applicant’s treating Psychologist and GP during early to mid-2020 indicated that the Applicant was pursuing legal education with the goal of setting up an employee advocacy consultancy for clients who were exposed to bullying and harassment. Later entries in the clinical evidence observed that this business venture was “beginning to take off”.

In light of the evidence in this matter, Member Isaksen commented that;

“I find it is logical and reasonable to conclude from the material which I have referred to that Ms Gleeson would have been aware from at least by July 2020, in her role and expertise as an advocate for clients who are exposed to psychological harm from bullying and harassment in the workplace, of the time limits for making a workers compensation claim. However, Ms Gleeson made no attempt to make a compensation claim at this time, and it was almost another 12 months before Ms Gleeson makes a claim for compensation.”

Member Isaksen determined that the Applicant could not recover compensation as the failure to bring a claim with 6 months was not occasioned by ignorance or other reasonable cause under section 261 of the 1987 Act. As such, there was no need for the Member to address the remaining issues.

Implications

When determining ignorance with respect to legislative timeframes in workers compensation, it is vital to obtain evidence regarding the Applicant’s level of knowledge. Whilst clinical notes can be viewed with some caution in the Personal Injury Commission, they can nevertheless be very useful in determining when the Applicant was likely to have become aware of their rights and obligations under workers compensation legislation.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either  (02) 8297 5900 or (02) 4929 9333.