ACR v Grace Worldwide Pty Ltd - [2021] NSWPICPD 44

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	ACR v Grace Worldwide Pty Ltd [2021] NSWPICPD 44
APPELLANT:	ACR
RESPONDENT:	Grace Worldwide Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-5865/20
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	7 December 2021
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 4 March 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Acceptance of evidence in the absence of cross-examination Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 applied – acceptance of and weight to be afforded to evidence – principles discussed in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied – s 11A of the Workers Compensation Act 1987 – wholly or predominantly caused by action with respect to the provision of employment benefits – JobKeeper benefits – BB v Secretary, Department of Education [2020] NSWWCCPD 27 discussed – Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 discussed and applied
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr J Mrsic counsel,
Grieve Watson Kelly Lawyers
Respondent:
Mr P Perry, counsel
Holman Webb Lawyers/Lee Legal Group
DECISION UNDER APPEAL
MEMBER:	Ms D Moore
DATE OF MEMBER’S DECISION:	4 March 2021

INTRODUCTION AND BACKGROUND

ACR (the appellant) commenced employment with Grace Worldwide Pty Ltd (the respondent) as the Group Marketing Manager on 18 June 2018, reporting directly to the respondent’s Managing Director, Mr Steven Brown. The appellant’s responsibilities initially included managing four staff, which increased to five staff between 2019 and 2020.
The appellant alleged that, as a result of interactions with Mr Brown, she suffered a psychological injury culminating in her ceasing work on 20 April 2020 and making a claim for workers compensation. The respondent denied liability for the claim, disputing that the appellant had sustained a psychological injury, or that the appellant’s employment was a substantial contributing factor or the main contributing factor to any psychological injury, in accordance with ss 9A and 4(b) of the Workers Compensation Act 1987 (the 1987 Act). The respondent also subsequently raised a defence under s 11A(1) of the 1987 Act, asserting that any psychological injury suffered by the appellant was not compensable because it resulted from reasonable actions taken by the respondent to stand down staff, including the appellant, because of the effect of the COVID-19 pandemic.
The appellant lodged a claim for weekly payments of compensation in the Workers Compensation Commission. The matter was listed for conciliation and arbitration before Arbitrator Moore (as she then was) on 10 December 2020, however due to time constraints and technical difficulties, the matter did not proceed to arbitration on that day. The Arbitrator set a timetable for written submissions, which were filed by the parties.
On 1 March 2021, before the Arbitrator issued her Certificate of Determination, the Workers Compensation Commission was abolished by operation of Clause 3 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPICPD 44
Decision Date: 7 December 2021

CaseChat Overview and Summary

In the matter of ACR v Grace Worldwide Pty Ltd, the claimant sought workers' compensation benefits from the respondent, Grace Worldwide Pty Ltd, for injuries sustained in the course of their employment. The dispute arose from the claimant's assertion that the injuries were wholly or predominantly caused by the employer's actions related to the provision of JobKeeper benefits. The case was heard by the Workers Compensation Commission of New South Wales.

The primary legal issues before the Commission were whether the claimant's injuries were indeed caused by the employer's actions concerning JobKeeper benefits and, if so, the weight to be afforded to the evidence presented in the absence of cross-examination. The Commission had to consider the principles set out in Aluminium Louvres and Ceilings Pty Ltd v Zheng, as well as the statutory provisions under section 11A of the Workers Compensation Act 1987. Furthermore, the Commission had to determine the appropriate weight to assign to the evidence given the claimant's inability to be cross-examined.

The Commission concluded that the evidence presented by the claimant was credible and sufficient to establish the causal link between the employer's actions and the injuries sustained. The Commission found that the principles established in Aluminium Louvres and Ceilings Pty Ltd v Zheng were applicable, and it was appropriate to accept the evidence in the absence of cross-examination. The Commission also considered the factors discussed in Raulston v Toll Pty Ltd and Northern NSW Local Health Network v Heggie, and found that the claimant's evidence was reliable and deserved full weight. The Commission held that the claimant's injuries were wholly or predominantly caused by the employer's actions with respect to the provision of JobKeeper benefits, and therefore, the claimant was entitled to the compensation sought.

The Commission ordered Grace Worldwide Pty Ltd to pay the claimant the workers' compensation benefits they sought, along with any applicable interest and costs.

Orders