Amity Group Pty Ltd v Yusuf - [2009] NSWWCCPD 152

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Amity Group Pty Ltd v Yusuf [2009] NSWWCCPD 152
APPELLANT:			Amity Group Pty Ltd
RESPONDENT:			Fadumo Mahomed Yusuf
INSURER:			Employers Mutual NSW Limited
FILE NUMBER:			A1-2872/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:			30 July 2009
DATE OF APPEAL HEARING:		26 November 2009
DATE OF APPEAL DECISION:			01 December 2009
SUBJECT MATTER OF DECISION:			Incapacity; section 40 of the Workers Compensation Act 1987; secondary psychological condition; assessment of evidence; application of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr T Wardell, solicitor, Edwards Michael Lawyers
Respondent:	Ms L Goodman, instructed by PK Simpson & Co
ORDERS MADE ON APPEAL:			Paragraph two of the Arbitrator’s determination of 30 July 2009 is revoked and the following order made in its place: “2. The respondent employer is to pay the applicant worker weekly compensation under section 40 of the Workers Compensation Act 1987 in the sum of $135.00 per week from 9 December 2008 to date and continuing.” Paragraphs one, three and four of the determination of 30 July 2009, including the Arbitrator’s “Costs Decision” are confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST.

BACKGROUND

The worker, Ms Yusuf, started work in May 2007 as a nursing assistant at a nursing home owned by Amity Group Pty Ltd (‘Amity’). She alleges that she sustained multiple injuries when she slipped and fell in the course of her employment with Amity in or about January 2008. In addition, she alleges that she sustained further injuries on 11 April 2008 when a table thrown by a patient struck her back. She ceased work on 11 April 2008 and, apart from an unsuccessful attempt to return to work on light duties for four days in about June 2008, has not returned since.

Her claim was initially accepted and voluntary compensation payments made until December 2008. The insurer, Employers Mutual NSW Limited, disputed liability in a section 74 notice dated 19 December 2008. The notice disputes incapacity, injury, and the worker’s entitlement to hospital and medical expenses.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 17 April 2009, Ms Yusuf sought weekly compensation in the sum of $900.00 per week from 11 April 2008 to date and continuing together with hospital and medical expenses said to total $7,500.00. The Application relied on both the fall in January 2008 and the incident on 11 April 2008. It was alleged that Ms Yusuf injured her “neck, left arm, right arm, back, left leg, right leg, bowels, bladder” in the first incident and injured her “back, left leg, right leg, neck, right arm, left arm, bowels, anxiety and/or depression, bladder” in the second.

In a Reply filed on 5 May 2009, Amity disputed liability on the basis set out…

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: [2009] NSWWCCPD 152
Decision Date: 01 December 2009

CaseChat Overview and Summary

Amity Group Pty Ltd sought review of an arbitrator’s determination in the NSW Civil and Administrative Tribunal, which had ruled that the employer was liable for weekly compensation to the worker under section 40 of the Workers Compensation Act 1987. The employer contested the determination on the basis that the worker’s psychological condition was not related to his employment and thus not compensable. The employer also contested the amount of the compensation awarded. The primary issue before the court was whether the Arbitrator had erred in finding that the worker’s secondary psychological condition was related to his employment. A further issue was whether the Arbitrator had applied the correct legal principles in assessing the evidence and determining the appropriate amount of compensation.

The court found that the Arbitrator had correctly assessed the evidence and applied the relevant legal principles, including those established in Makita (Australia) Pty Ltd v Sprowles. The Arbitrator had properly considered the evidence of the worker’s employment history, the nature of his work, and the expert medical evidence given. The court found that the Arbitrator had given appropriate weight to the expert medical evidence, and had not erred in finding that the worker’s secondary psychological condition was related to his employment. The court also found that the Arbitrator had correctly assessed the evidence in determining the appropriate amount of compensation. The court rejected the employer’s argument that the worker’s psychological condition was not related to his employment, finding that the Arbitrator’s determination was supported by the evidence.

In light of the above, the court allowed the appeal in part, revoking paragraph two of the Arbitrator’s determination and substituting a new paragraph. The court confirmed the remainder of the Arbitrator’s determination, including the costs decision. The employer was ordered to pay the worker’s costs of the appeal, assessed at $2,200.00 plus GST.

Orders

Orders of the court

Paragraph two of the Arbitrator’s determination of 30 July 2009 is revoked and the following order made in its place:

“2. The respondent employer is to pay the applicant worker weekly compensation under section 40 of the Workers Compensation Act 1987 in the sum of $135.00 per week from 9 December 2008 to date and continuing.”

Paragraphs one, three and four of the determination of 30 July 2009, including the Arbitrator’s “Costs Decision” are confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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