DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
AVv AW [2020] NSWWCCPD 9
APPELLANT:
AV
RESPONDENT:
AW
INSURER:
StateCover Mutual Ltd
FILE NUMBER:
A1-2097/19 A2-2097/19
ARBITRATOR:
Mr J Harris
DATE OF ARBITRATOR’S DECISION:
30 August 2019
DATE OF APPEAL DECISION:
24 February 2020
SUBJECT MATTER OF DECISION:
Section 4(b)(ii) of the Workers Compensation Act 1987 and the test of ‘main contributing factor’
PRESIDENTIAL MEMBER:
Deputy President Michael Snell
HEARING:
On the papers
REPRESENTATION:
A1-2097/19
Appellant:
Ms N Tancred, solicitor Gillis Delaney Lawyers
Respondent:
Mr D Saul, counsel Bartier Perry
A2-2097/19
Appellant: Mr D Saul, counsel Bartier Perry
Respondent: Ms N Tancred, solicitor Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:
1. The appeals in matters nos. A1-2097/19 and A2-2097/19 are both dismissed.
2. The Arbitrator’s orders dated 30 August 2019 are confirmed.
INTRODUCTION
This matter involves a claim by AV (the worker) for weekly compensation and medical expenses against AW (the employer) in respect of a psychological injury. Her last day at work was 26 July 2018. The matter proceeded on the basis that the worker alleged injury simpliciter (s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) and the ‘disease’ provisions (s 4(b)(ii) of the 1987 Act) in the alternative. The employer disputed both injury allegations.
The employer also disputed, to the extent to which s 4(a) was relied on, that s 9A of the 1987 Act (‘substantial contributing factor’) was satisfied. Whether the worker had residual capacity to earn was also in issue.[1]
[1] AV v AW [2019] NSWWCC 286 (Reasons), [2]–[3], [9].
The matter proceeded to arbitration hearing on 26 July 2019 and 6 August 2019. Mr Morgan appeared for the worker and Mr Saul for the employer. No oral evidence was called. Counsel addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 30 August 2019, accompanied by 40 pages of reasons. The Arbitrator found that the worker had “suffered an exacerbation and aggravation of a pre-existing psychological condition from work incidents in the period from April to 26 July 2018”. The Arbitrator was “not satisfied that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the psychological condition”. The Arbitrator entered an award in the employer’s favour.
The worker, in matter no. A1-2097/19, appeals against the award in the employer’s favour. In matter no. A2-2097/19 the employer, in a document described as a “cross-appeal/notice of contention”, appeals against the formal finding that the worker “suffered an exacerbation and aggravation of a pre-existing psychological condition from work incidents in the period from April to 26 July 2018”.[2] The employer, in the preamble to its appeal, indicates that its appeal is to “protect its position”, and is not to be pressed if the worker’s appeal is dismissed. The employer indicates its submissions on its appeal are included in its Notice of Opposition in matter A1-2097/19.[3] References in the reasons on this appeal to documents in the Notice 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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AGLC
AV v AW [2020] NSWWCCPD 9
Case
[2020] NSWWCCPD 9
Decision Date
CaseChat Overview and Summary
In the case of AV v AW, the applicant, AV, sought to appeal against a decision made by the Workers Compensation Arbitrator, who had ruled in favour of the respondent, AW. The dispute centred on the interpretation of Section 4(b)(ii) of the Workers Compensation Act 1987, specifically regarding the test of ‘main contributing factor’ in the context of workers' compensation claims. The matter was heard in the Supreme Court of Victoria.
The primary legal issue before the court was whether the Arbitrator had correctly applied the law in determining that AW was not the main contributing factor to AV’s injury. The court had to consider the evidence presented and the Arbitrator’s findings, particularly focusing on the statutory interpretation of Section 4(b)(ii) and the application of the 'main contributing factor' test. Additionally, the court assessed whether the Arbitrator's decision was legally sound and whether there were any errors in the application of the law that warranted overturning the Arbitrator's orders.
The court found that the Arbitrator had correctly applied the law and made no errors in determining that AW was not the main contributing factor to AV’s injury. The reasoning of the court was grounded in a detailed analysis of the statutory provisions and the factual findings made by the Arbitrator. The court concluded that the Arbitrator's decision was legally sound and that there were no grounds for the appeal to succeed. Consequently, the appeals were dismissed, and the Arbitrator's orders dated 30 August 2019 were confirmed.
Orders
Orders of the court
1. The appeals in matters nos. A1-2097/19 and A2-2097/19 are both dismissed.
2. The Arbitrator’s orders dated 30 August 2019 are confirmed.