Palasty v Lendlease Building Pty Ltd (NSWPICPD 2021)

Key Takeaways

An injured worker cannot simply rely on their own version of events in seeking to establish injury. Where the worker’s evidence is contradicted by statements of other witnesses the worker will be required to have independent support for the allegations of injury.

Brief Facts

The worker was employed by the respondent from 3 February 2020 until his resignation on 23 April 2020. He claimed weekly benefits in respect of an alleged psychological injury due to bullying, harassment, overwork and being subject to unfair workplace expectations.

It was apparent from the evidence that the worker had a history of prior psychological problems, including drug induced psychosis and schizophrenia. He stated that at the time of commencing employment these pre-existing conditions were under control.

There was a factual dispute with statements tendered on behalf of the employer contradicting the worker’s version of events in the workplace.

At first instance a member of the PIC found that the worker’s version of events was not credible. She also held that the conclusions of medical experts was not based on an accurate factual background. She accordingly entered an award for the respondent, primarily on the basis that there was no evidence that the worker’s employment was the main contributing factor to an aggravation of his underlying schizophrenia. The worker appealed from that decision.

Decision on Appeal

The appeal was determined by Acting Deputy President Parker SC.

One of the bases for dismissing the appeal by the Acting Deputy President was that where there are multiple potential causes for the aggravation of a pre-existing condition, the onus is on the worker to establish that employment was the main contributing factor to the aggravation.

Acting Deputy President Parker confirmed the member’s comments that the expert evidence could not be relied on if it was based on incorrect facts. The Acting Deputy President stated, ‘expert evidence cannot rise above the substratum of proven factual material.’

It was noted by the Acting Deputy President that the worker had not specifically challenged any of the factual findings made by the arbitrator. The worker could not rely on decisions such as Chemler and Attorney General v K in asserting that he perceived events in the workplace as being bullying and harassment. This was because the worker had not established that the events had in fact occurred as alleged by him.

The member and Acting Deputy President also gave some weight to the fact that no treating medical practitioners had complied with directions for production and accordingly no evidence was available from those treating doctors.

Implications

Where a worker’s version of events in the workplace is challenged by the employer, evidence, including signed statements from fellow employees, should be obtained.

The decision in Palasty also confirms that medical evidence can be challenged if it is based on an erroneous history.