The two recent decisions of Granitto v Catholic Education
Office of WA (WA C17-2011, McCann P, 17 October 2011,
unreported) (Granitto) and RPS
Environment and Planning Pty Ltd v Kelly (WA C21-2011, McCann
P, 22 December 2011, unreported)
(Kelly)serve as a reminder of the
difficulties associated with defending a stress claim based on the
exclusions contained within section 5(4) of the Workers'
Compensation and Injury Management Act 1981 (WA)
In both of these cases, the employers failed to establish that
the worker's psychiatric disease was predominantly caused by
one or more of the exclusionary matters, despite giving evidence of
numerous incidents which appeared, on the face of them, to give
rise to these exclusions.
Granitto involved an appeal from a decision of an
arbitrator who had dismissed the worker's application, seeking
a determination of liability, on the ground that his work-related
psychiatric disease was predominantly caused by his expectation of
the excluded matters referred to in section 5(a). Based on the
facts outlined in the decision, these exclusions appear to include
an expectation of discipline, redeployment and/or dismissal.
There were numerous incidents particularised in the decision,
including (1) the fact the worker's probationary period was
extended unilaterally due to issues concerning his management
style, (2) a formal complaint of bullying and harassment had been
made against the worker, (3) mentor training had been implemented
to assist the worker with his management style and (4) a meeting
was held at which the worker was advised that his employer was
considering moving him out of his team leader role or,
alternatively, retaining him in the position, subject to him
continuing with mentor training.
Despite these seemingly significant events, Commissioner McCann
reversed the arbitrator's decision on the basis that having
detailed each of the relevant stressors individually, it was
apparent there were other relevant factors which contributed to the
worker's stress-related illness, including (1) a perceived lack
of support by management, (2) difficulties in dealing with one of
his subordinates and (3) a breach of confidentiality by one of his
mentors (or the threat of such).
Kelly concerned, amongst other things, an appeal
against an order made by an arbitrator for the payment of weekly
compensation and statutory expenses in relation to the worker's
claim for a stress-related illness.
The employer argued that the worker's claim was excluded due
to her expectation of a benefit, namely in relation to her prior
flexible work environment and her transfer or expectation of the
same, as she had previously been working for one director and was
then transferred to another. The proposed transfer also included a
change in her physical working environment and a change of role.
The worker led evidence of various stressful incidents at work,
which also included stressors that did not involve exclusionary
Although Commissioner McCann granted leave to appeal, he
subsequently held that the appeal should be dismissed.
In both of the cases, Commissioner McCann held that the workers
had discharged their onus of proving that a potentially excluded
matter was not the predominant cause of their stress-related
illness, by simply proving that there were a number of factors
contributing to their disease, perhaps co-existing with the
excluded matters, and therefore the excluded matter (or expectation
of the same) was not the predominant factor.
In the light of these two decisions, it is evident that it
remains very difficult for insurers to satisfy the "wholly or
predominantly caused by" hurdle contained within section 5(4)
of the Act.
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.
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