How far does Employment extend?
Nizamdeen v University of New South Wales [2022] NSWPIC 17 (12 January 2022)
The Applicant was employed by the Respondent as a Business Systems Analyst. He alleged sustaining psychological injury as a result of being arrested at his workplace on 30 August 2018, after details for a terrorist attack were found set out in a notebook of his.
The Applicant was detained in solitary confinement for around one month and claims to have been subjected to long hours of interrogation. The charges against the Applicant were dropped when it was revealed that the notebook entries had been created by his co-worker. The Applicant alleged sustaining a psychological injury on 30 August 2018 in the form of PTSD and made a claim for lump sum and weekly benefits compensation.
Issues for determination
- Whether the Applicant sustained an injury arising out of or in the course of his employment and, or in the alternative, whether he sustained a disease injury in the course of his employment (pursuant to Section 4 of the Workers Compensation Act 1987);
- Whether the Applicant’s employment was a substantial contributing factor to a personal injury or the main contributing factor to a disease injury (pursuant to Sections 9A and Section 4 of the 1987 Act, respectively).
Submissions
The Applicant asserted that he had sustained a personal injury rather than a disease injury. He argued that his employment was a substantial contributing factor to the injury because it was a co-worker who allegedly framed him, the false arrest occurred during work hours, and that he suffered humiliation at his place of employment.
The Applicant conceded that there were other events outside of the workplace which contributed to his injury, such as being placed in prison for a month, but said that the evidence established that his employment was a substantial contributing to his injury.
The Respondent argued that the Applicant’s psychological injury was not caused by a specific event but instead developed as a disease. It was asserted there was no evidence of the Applicant suffering a sudden pathological change on 30 August 2018, which is necessary to establish a personal injury as provided for by section 4 (a) of the 1987 Act. It was argued that the evidence supports a finding that the Applicant’s psychological condition developed while he was in custody for a month, was subjected to interrogation, and became aware that he was the subject of acute media attention. The Applicant’s psychological condition was therefore asserted to be a disease injury. It was further argued that employment could not be the main contributing factor to the contraction of that disease injury because there were several contributing factors which had no relationship to the Applicant’s employment.
Decision and reasons
Member Isaksen referred to the decision in NSW Police Force v Gurnhill [2014] NSWWCCPD 12, in which it was indicated that in order for a psychological injury to be classified as a personal injury, it is necessary that the events complained of had a ‘physiological effect on the worker’, also described as a ‘sudden or identifiable physiological change’.
The Member was not satisfied that the evidence established that the Applicant experienced such a change when he was at work on 30 August 2018. The Applicant in his statement did not describe experiencing a sudden change, and the medical evidence did not support him in that respect. The Member considered that both the Applicant’s statement and the medical evidence were consistent with the definition of disease provided by Burke CCJ in Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 of “a failure of an area of the body to cope with repeated stress imposed upon it”. He therefore determined that the Applicant’s injury was in the nature of a disease.
In respect of causation, Member Isaksen noted that there were several factors identified by the Applicant and the medical evidence which were not related to the Applicant’s work. These included: imprisonment, interrogation, attacks by the media and the Applicant’s allegations of racial profiling. The Member said that even if it were accepted that other factors, such as the Applicant’s arrest while at work, occurred in the course of the Applicant’s employment, the evidence did not support a finding that the Applicant’s employment was the main contributing factor to contraction of a disease injury.
The Member said that even if he was wrong about the Applicant’s injury being a disease injury, he was still not satisfied that the Applicant’s injury arose out of or in the course of his employment, or that employment was a substantial contributing factor to the injury. The Applicant had asserted that the chain of events leading to his psychological injury only occurred because he and his co-worker (who allegedly tampered with his notebook) worked for the Respondent.
The Respondent argued that the tampering of the Applicant’s notebook by a colleague and the subsequent arrest had nothing to do with the Applicant’s employment.
The Member noted that there was nothing in the evidence to reveal what the Applicant was doing in his employment as a Business Analyst which led his co-worker to allegedly frame him. He said that the fact that the two men worked at the same place was not sufficient to establish that employment was a substantial contributing factor to his injury. He said that if there was some evidence that the notebook which had been tampered with was an integral part of the Applicant’s duties, or that there was a unique working relationship between the Applicant and his co-worker which would allow a connection to be made between the work being performed by them and the injury, an argument could be made that the injury arose out of or in the course of the Applicant’s employment, and that employment was a substantial contributing factor.
Member Isaksen therefore decided in favour of the Respondent.
Implications
Where a worker has experienced a number of potentially distressing incidents, consideration of the evidence is required in order to determine whether there was a personal injury relatable to one specific event, or a disease injury relatable to a number of events. In order to establish that there was a personal injury, there will need to be evidence of a sudden physiological change at the time of the allegedly causative incident.
This case provides an example of the factors to be considered in determining whether a worker’s injury arose out of or in the course of their employment, and whether employment was a substantial contributing factor to the injury. Member Isaksen considered that there was nothing about the Applicant’s work as a Business Analyst or his working relationship with the co-worker who allegedly betrayed him which would allow a connection to be made between the work being performed by them and the injury. Neither was there any evidence that the notebook tampered with was an integral part of the Applicant’s duties.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
