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) (Act).
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
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
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 matters.
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.
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