No Occurrence, Event, Characteristic or Condition

Palasty v Lendlease Building Pty Limited [2021] NSWPICPD 19

The Appellant was a former Commercial Legal Graduate who alleged that he had suffered a psychological injury as a result of his employment with the Respondent.

The Appellant commenced employment with the Respondent on 3 February 2020 and resigned on 23 April 2020 due to allegedly being bullied, harassed, overworked and subjected to unfair workplace expectations.

Prior to commencing employment with the Respondent, the Appellant had a history of psychiatric illness including drug induced psychosis and schizophrenia. He alleged that at the time of commencing employment with the Respondent that his pre-existing psychiatric condition was well managed.

The Appellant lodged an Application to Resolve a Dispute (ARD) seeking weekly benefits from 23 April 2020 onwards on the basis that his employment with the Respondent had aggravated, accelerated and exacerbated his pre-existing schizophrenia.

On 24 December 2020, Member Homan found in favour of the Respondent in that the Appellant’s employment was considered to not be the main contributing factor to the aggravation, acceleration or exacerbation of his pre-existing schizophrenia in accordance with Section 4(b) of the Workers Compensation Act 1987.

The Appellant filed an Application to Appeal Against Decision of the Member on 21 January 2021 on the basis of an error of fact and law.

Grounds of Appeal

The Appellant appealed the decision on the basis that there was an error of fact and law within the meaning of Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998. The Appellant made no challenge to the Member’s factual findings.

The Appellant set out 13 grounds of Appeal which related to whether the Member had made an error of fact and law when determining that his employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his psychological condition.

Presidential Decision

The onus was upon the Appellant to establish that his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his psychological condition. The absence of an alternative explanation of any aggravation is not to be taken into consideration, rather the concern is whether he has established that his employment was the main contributing factor.

Acting Deputy President Geoffrey Parker confirmed that in accordance with the decision of Justice Windeyer in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 that when the Act refers to employment as a contributing factor the contributing factor must be either some event or occurrence, a characteristic of the work performed or the conditions in which it was performed.

Acting DP Parker confirmed the decision of Member Homan that there was no occurrence, event, characteristic or condition of the work performed as alleged by the Appellant and as such he had failed to establish that the main contributing factor to the aggravation was his employment.

He considered upon review that there was no evidence to find that the Appellant’s employment had had any impact on his schizophrenia prior to ceasing work with the Respondent.

Acting DP Parker considered that the Appellant failed to make out any grounds of Appeal and the decision of Member Homan was confirmed.

Implications

For employment to be a contributing factor there must be more than simply employment, there must be an event or occurrence, a characteristic of work performed or the conditions in which it was performed. No consideration is to be given for the absence of an alternative explanation of any aggravation besides the work. The onus of proof is upon the Applicant to establish that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury.

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