Bennett v Qantas Airways Ltd

[2019] NSWWCCPD 23

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bennett v Qantas Airways Ltd [2019] NSWWCCPD 23
APPELLANT:	Marie Bennett
RESPONDENT:	Qantas Airways Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-4609/18
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	14 December 2018
DATE OF APPEAL DECISION:	29 May 2019
SUBJECT MATTER OF DECISION:	An arbitrator’s duty to give adequate reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	LHD Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1.     The Certificate of Determination dated 14 December 2018 is confirmed.

INTRODUCTION AND BACKGROUND

1. Marie Bennett (the appellant) was employed by Qantas Airways Ltd (the respondent) as a long haul flight attendant, from 5 January 1987. On a date which is unclear she was promoted to be a customer service manager, but this remained “very much a hands on flight attendant role”.[1] She injured her left shoulder on a flight between Sydney and Los Angeles on 16 May 2015, lifting a bag of headsets from an overhead locker. She sought medical assistance on her return to Sydney, was referred to Dr Goldberg, orthopaedic surgeon, and underwent arthroscopic rotator cuff repair and acromioplasty on 20 October 2015. The respondent voluntarily accepted liability for the claim.

   [1] Dr Bodel’s report dated 30 August 2017, Application to Resolve a Dispute (ARD), p 2.

2. Following the surgery, the appellant resumed work with the respondent on selected duties, at the Mascot long haul base, performing clerical work on a part-time basis. The appellant was involved in a further incident on 9 June 2016 whilst performing such duties. Some boxes of archived documents were stacked on each other, to about waist height. As she was filing documents into one of the archive boxes it began to slide, and she twisted quickly to try to catch it to stop it from falling. She injured her lumbar spine. A claim on the respondent in respect of this injury was accepted. The appellant resumed selected duties following this injury. Her employment with the respondent ultimately ceased on 18 May 2017, by way of voluntary redundancy.[2]

   [2] Appellant’s statement dated 29 May 2018, ARD, pp 103–4.

3. The appellant was assessed by Dr Bodel, orthopaedic surgeon, at the request of her solicitors, and he reported on 30 August 2017. Dr Bodel assessed whole person impairment at eight per cent in respect of the left upper extremity (shoulder), and at seven per cent in respect of the lumbar spine. These impairments, if combined, yielded 14 per cent whole person impairment. Neither of the impairments, taken alone, was greater than 10 per cent, and accordingly, because of the operation of s 66(1) of the Workers Compensation Act 1987 (the 1987 Act), neither was sufficient to yield an entitlement to lump sum compensation pursuant to s 66. The appellant made a claim based on the 14 per cent combined figure, on 11 December 2017.[3] The respondent rejected this claim in a dispute notice dated 24 January 2018, on…