by Bailey Lennard and Darran Russell
Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6 (23 April 2021)
The Appellant commenced employment with the Respondent as a Claims Support Officer in July 2008. Her duties involved customer service and administrative tasks.
She reported that she was also given the extra responsibility of training a new recruit and as a result of their mistakes she fell behind in her own work.
She sought treatment for anxiety and alleges that she suffered panic attacks when commuting to work by train. On 6 September 2009 she collapsed at home and then did not return to work for the Respondent. She received sick leave, annual leave and unpaid leave. She also made a claim for income protection benefits which was accepted.
The Appellant did not lodge a claim for the alleged workplace psychological injury until 22 October 2014. In accordance with Section 261 of the Workplace Injury Management and Workers Compensation Act 1998 a claim must be made within six months after the injury. However, a failure to make a claim within this six month period does not disentitle an injured work from recovering compensation if they can establish that the failure to make the claim was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:-
- the claim was made within 3 years after the injury or accident happened, or
- the claim is not made within 3 years but is in respect of an injury resulting in the serious and permanent disablement.
Given that the claim was made outside the three year period the Appellant had to establish that the failure to make the claim was occasioned by ignorance, mistake, absence from the State or other reasonable cause and that her injury resulted in serious and permanent disablement.
The Respondent declined liability for Appellant's psychological injury on the basis that it did not arise out of or in the course of her employment in accordance with Section 4 of the Workers Compensation Act 1987 and that her employment was not a substantial contributing to the injury in accordance with Section 9A of the 1987 Act. Additionally, they also raised the defence pursuant to Section 11A of the 1987 Act and raised the time limit issue pursuant to Section 261 of the 1998 Act.
The Appellant commenced proceedings in the Commission seeking lump sum compensation in respect of 19% WPI for a psychological injury occurring as a result of the nature and conditions of her employment with the Respondent.
The matter was listed for Arbitration before Member Wynyard who considered that the issues were: whether the Appellant's application was statute barred by virtue of Section 261 of the 1998 Act and, if not, whether the Appellant's employment was a substantial or main contributing factor to her injury pursuant to Sections 9A and 4(b) of the 1987 Act.
Member Wynyard considered that the Appellant's failure to make a claim was not occasioned by ignorance and therefore the Application was statute barred pursuant to Section 261 of the 1998 Act.
Grounds of the Appeal
The Appellant sought an Appeal from Member Wynyard's decision upon multiple grounds. The main ground of Appeal was that Member Wynyard erred in fact in finding that the failure to bring a claim was not occasioned by ignorance.
Presidential Decision
The Appeal was heard before Deputy President Michael Snell who noted that, given the Appellant was seeking to bring the claim within the scope of Section 261 of 1998 , she carries the onus of proving that she was ignorant of her rights to workers compensation payments.
The Appellant submitted that she did not turn her mind to workers compensation payments until she consulted Dr Zoltan which was arranged by her income protection case manager.
Member Wynyard considered that there were inconsistences in the Appellant's evidence, when compared with the contemporaneous and medical histories. On this basis, he considered her evidence to be "unreliable".
In addition to highlighting the inconsistences in the evidence, Member Wynyard also had reservations about the Appellant's ignorance on the basis that: she had been employed by the Respondent, an insurance company, for over a year and that she was aware of the workers compensation scheme having previously made a claim for a back injury. On this basis, Member Wynyard considered that it was likely that the Appellant would have been aware of the existence of workers compensation coverage for psychological injuries.
Deputy President Snell considered that the approach adopted by the Member was available on the evidence and that the Appellant had not established an Appealable error. Therefore, he determined that the claim was not brought within the scope of Section 261 of the 1998 Act.
DP Snell considered that the Appeal failed and the decision of Member Wynyard that the claim was not brought within the scope of Section 261 of the 1998 Act was confirmed.
Implications
In determining whether a failure to make a claim was caused by ignorance, the Commission will examine the inconsistencies in the evidence presented and whether or not the evidence is unreliable. If the evidence is deemed to be unreliable the Commission will likely determine that ignorance was not present.
Knowledge of the workers compensation scheme will also demonstrate to the Commission that the failure to make the claim was not due to ignorance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
