PIC Member Makes No ‘Mistake’ In Section 261 Determination

Gleeson v Health Services Union NSW [2024] NSWPICPD 3

The Appellant worker was employed as a Union Organiser by the Respondent, Health Services Union of NSW. The Appellant alleges that she developed a psychological injury in the course of her employment due to bullying, harassment, excessive workloads and unwarranted actions from other employees.

The Appellant would resign with the employer on 11 December 2019, however would not obtain a Certificate of Capacity from her GP until 25 June 2021. As such, the Appellant’s injury was disputed 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 under sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

The matter was heard before Member Isaksen in the Personal Injury Commission. In his decision dated 13 January 2023, the Member determined that the Appellant could not recover compensation as she failed to establish an exception to the 6-month time limitation under 261(4) of the 1998 Act.

Member Isaksen accepted evidence in the Appellant’s clinical notes that she had an understanding of the Workers Compensation process by way of her role and expertise as an advocate for clients who had been exposed to psychological harm due to bullying in the workplace. The Appellant worker appealed the Member’s decision

Grounds of appeal

The Appellant only identified one ground of appeal, being “Error of fact and law in finding the appellant did not discharge her onus in proving either ‘ignorance’ (or ‘mistake’) of the timeframes in which to make a workers compensation claim in New South Wales”

Decision

The Appellant submitted that the appeal essentially hinged on her credit and the distinction between her knowledge of employment law as opposed to the NSW Workers Compensation System. It was submitted by the Appellant that the Member misconceived and overstated the significance of the Appellant’s role as a Union Organiser and that the reference in the clinical evidence to ‘advocacy’ was compelling evidence as to knowledge of Workers Compensation timeframes.

In his decision, Acting Deputy President Michael Perry found that the Member’s reasonings demonstrates that he took all relevant primary facts into consideration. This extended to not only the clinical notes but also to the Appellant’s work as a Union Organiser.

DP Perry was of the view that the Member did not misconceive or overstate the significance of the clinical entries. The Appellant submitted that she only worked as Union Organiser and did not provide advice on workers compensation claims. The Acting Deputy President stated at [72] that:

“Just because the appellant did not provide advice in relation to WC claims in the NSW system as part of her work duties, and even if she had been directed to refer members with such an enquiry to a different section of the union, it does not at all necessarily follow that she does not have knowledge, at least to some extent, of aspects of that system, in particular, important or major aspects such as limitation periods for making claims.”

DP Perry accepted that the Member’s opinion was reasonably open to him and was not a situation where an available inference in the opposite sense to that chosen by the Member was so preponderant as to make his decision wrong.

DP Perry again highlighted that the Appellant bore the onus of establishing that her failure to bring a claim within the prescribed period was occasioned by ignorance or mistake. The Deputy President was of the view the Member’s findings that the Appellant did not discharge this onus was reasonable in the circumstances.

Even if the Member did err, DP Perry considered it would make no difference to the result as:

“It was not necessary for him to identify “compelling” evidence that the appellant knew the relevant timeframes given the onus borne by her. It was only necessary for him to find he did not have a sufficient level of actual persuasion or satisfaction to find that the failure to make a claim within six months was occasioned by ignorance (or mistake).”

DP Perry found no demonstrable errors and confirmed the COD.

Implications

This case confirms that it is vitally important to look at wide ranging evidence when determining whether failure to bring a claim within the legislative timeframes was occasioned by ignorance, mistake, absence from the State or other reasonable cause.

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