Attorney General's Department v K

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Attorney General’s Department v K (2010) 8 DDCR 120
CITATION:		Attorney General’s Department v K [2010] NSWWCCPD 76
APPELLANT:		Attorney General’s Department
RESPONDENT:		K
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		A1-41/10
ARBITRATOR:	Mr J McGruther
DATE OF ARBITRATOR’S DECISION:		18 March 2010
DATE OF APPEAL DECISION:		21 July 2010
SUBJECT MATTER OF DECISION:		Psychological injury; relevance of worker’s perception of events; excessive workload; causation; unsuccessful application for promotion; whole or predominant cause; section 11A of the Workers Compensation Act 1987; application of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286; unmeritorious appeal; obligation of legal practitioners to comply with section 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3 of Appeal Against Decision of Arbitrator
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	SMK Lawyers
Respondent:	WG McNally Jones Staff
ORDERS MADE ON APPEAL:		For the reasons given by the Arbitrator, and for the additional reasons in this decision, the Arbitrator’s determination of 18 March 2010 is confirmed.
The appellant employer is ordered to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

BACKGROUND

1.The respondent worker is a solicitor. She worked in that capacity for the appellant employer from about December 2000. She claimed weekly compensation from 2 June 2009 until 13 December 2009 as a result of a psychological injury (Adjustment Disorder with Depressed and Anxious Mood and a Major Depressive Episode) allegedly received by her due to an excessive workload, chronic pain from a work-related foot injury and harassment at work.

2.The appellant employer’s workers compensation insurer, Allianz Australia Insurance Limited (‘Allianz’), disputed liability for the claim in a section 74 notice dated 12 March 2009 on the grounds that the worker’s condition had arisen as a consequence of her “misperception of events”, such that the injury did not arise out of or in the course of employment and was not “substantially work related”. Further, or in the alternative, any psychological injury had been wholly or predominantly caused by reasonable action taken by the employer with respect to “performance appraisal and promotion” (section 11A Workers Compensation Act 1987 (‘the 1987 Act’)).

3.Allianz relied on a report from Ms Clarke, psychologist, dated 24 April 2008, in which it was noted that the worker had been “upset” in relation to her “unsuccessful applications for 9 promotions in the past 3 years”. The notice stated that the worker’s failure to achieve promotion in her job was the “whole or predominant cause” of her psychological condition. The insurer did not dispute incapacity.

4.The Commission listed the worker’s application for conciliation and arbitration on 3 March 2010. On that day, each party was legally represented. The Arbitrator heard lengthy submissions, but took no oral evidence.

5.In a reserved decision delivered on 18 March 2010, the Arbitrator found…