Baker v Southern Metropolitan Cemeteries Trust

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56
APPELLANT:	Wayne Thomas Baker
RESPONDENT:	Southern Metropolitan Cemeteries Trust
INSURER:	Employers Mutual (NSW) Ltd
FILE NUMBER:	A1-6554/14
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	16 June 2015
DATE OF APPEAL HEARING:	18 September 2015
DATE OF APPEAL DECISION:	24 September 2015
SUBJECT MATTER OF DECISION:	Whether worker suffered a psychological injury; whether Arbitrator erred in assessing claim as two separate and discrete injurious events rather than as the cumulative effect of many events over time; absence of complaint to general practitioner; application of principles in Attorney General’s Department v K [2010] NSWWCCPD 76; assessment of evidence; credit findings; whether credit findings contrary to incontrovertible facts; application of principles in Fox v Percy [2003] HCA 22; 214 CLR 118; failure to consider expert evidence from treating psychiatrist; assessment of expert evidence generally; relevance of worker’s application for re-employment with respondent after ceasing work
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral

REPRESENTATION:	Appellant:	Mr L Morgan, instructed by Walkom Lawyers
Respondent:	Mr H Halligan, instructed by Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 16 June 2015 is revoked and the matter remitted to another Arbitrator for re-determination.

INTRODUCTION

1. This matter involves a challenge to an Arbitrator’s finding that the worker did not suffer a psychological injury in the course of or arising out of his employment. For the reasons explained below, the appeal is successful. The Arbitrator’s determination is revoked and the matter remitted to another Arbitrator for re-determination.

PROCEDURAL BACKGROUND

1. The appellant worker, Wayne Baker, worked as a general hand with the respondent employer, Southern Metropolitan Cemeteries Trust. His main duties included mowing and general cleaning and maintenance at the respondent’s Woronora Cemetery.

2. Mr Baker alleged that he suffered major depressive disorder due to numerous events that occurred in the course of, or arose out of, his employment with the respondent from 5 March 2012 (wrongly pleaded as 5 March 2013) to 25 September 2013. He alleged that, in this period, he was subjected to numerous instances of bullying and harassment, particularly (but not only) at the hands of a Tod Brown, a co-worker at the cemetery.

3. The problem came to a head on 26 September 2013. On that day, a Constable Taylor from Miranda Police Station contacted Mr Baker, investigating an allegation by Mr Brown that Mr Baker had falsely reported him to the police for carrying a gun in his vehicle and of having had an association with a bikie group. Mr Baker immediately stopped work and attended his general practitioner. He has not returned to work since.

4. In support of his case, Mr Baker relied on evidence from Dr Goran Stevans, his treating psychiatrist, and Dr Bruce Westmore, forensic psychiatrist qualified by his solicitor.

5. The respondent’s insurer disputed liability.

6. Relying on statements from several co-workers, which disputed some of Mr Baker’s assertions but…