Bi-Lo Pty Ltd v Burns - [2011] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Bi-Lo Pty Ltd v Burns [2011] NSWWCCPD 49
APPELLANT:		Bi-Lo Pty Ltd
RESPONDENT:		Melanie Burns
INSURER:		Coles Group Limited
FILE NUMBER:		A1-7778/10
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		21 April 2011 22 August 2011
DATE OF APPEAL DECISION:		6 September 2011
SUBJECT MATTER OF DECISION:		Psychological injury; whether worker totally or partially incapacitated; how to assess; relevance of work performed on a rehabilitation program; application of principles in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 and Steggles v Aguirre (1988) 12 NSWLR 693
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr P Barnes, instructed by TurksLegal
Respondent:	Mr M Best, instructed by R J O’Halloran & Co
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 21 April 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs, assessed at $2,200 plus GST.

BACKGROUND

Ms Burns is 21 years old. She started work for Bi-Lo Pty Ltd (Bi-Lo) (a subsidiary of Coles Group Limited) in mid-2006. It was her first job after leaving school that year. She worked as a check-out assistant at Bi-Lo’s Tamworth South store. While at work on the evening of 19 June 2008, she was the victim of a violent armed hold-up by three men of Aboriginal appearance wearing balaclavas.
In the course of that hold-up, she had a knife held to her neck and was pushed towards the service desk area. The assailant who held a knife to her throat said words to the effect of “fucking give me the money now”. At the time of the hold-up, Ms Burns was the only person working at the check-out register.
As at 19 June 2008, Ms Burns was a permanent part-time employee working about 28 hours per week. The incident left her shaken and upset. She sought treatment from her general practitioner, Dr Loeve, who certified her unfit for work and referred her to a psychologist and psychiatrist. She remained off work until Dr Loeve certified her fit for suitable duties for six hours per week from 29 October 2008. Ms Burns was not to do any front counter work and was to work with a “buddy”.
Ms Burns returned to work with these restrictions at the Tamworth Coles Central store and gradually increased her hours throughout 2008 and 2009. On 11 August 2009, Dr Loeve certified her fit for suitable duties for 24 hours per week, with 30 minutes working without a buddy. As the working independently had not been successful, on 12 August 2009, Dr Loeve reduced her hours to 20 per week and recommended that she work with a “constant buddy”.
Ms Burns stopped work on a date not identified in August 2009 to take holidays and other leave in lieu, and then started maternity leave on 14 September 2009, having fallen pregnant in February of that year.
She claimed weekly compensation…

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.

Continue reading Bi-Lo Pty Ltd v Burns

Details

AGLC: Bi-Lo Pty Ltd v Burns [2011] NSWWCCPD 49
Case: [2011] NSWWCCPD 49
Decision Date: 6 September 2011

CaseChat Overview and Summary

Bi-Lo Pty Ltd appealed against a decision of an arbitrator who had awarded damages to the respondent, Mr. Burns, for psychological injury sustained in the course of employment. The dispute was heard by the Industrial Relations Commission of New South Wales. The central legal issue before the Commission was how to assess the degree of incapacity of a worker who had sustained psychological injury, and in particular, whether the work performed on a rehabilitation program was to be taken into account in assessing the worker’s incapacity. The principles relevant to this issue had been set out in Lawarra Nominees Pty Ltd v Wilson and Steggles v Aguirre.

The Commission confirmed the Arbitrator’s approach to assessing the degree of incapacity. The Arbitrator had concluded that the work performed on the rehabilitation program was to be disregarded in assessing incapacity. The Commission found that this approach was consistent with the relevant authorities and was therefore correct. The Arbitrator’s assessment of the degree of incapacity was not challenged on appeal. The appeal was dismissed with costs.

Orders

Orders of the court

The Arbitrator’s determination of 21 April 2011 is confirmed.

The appellant employer is to pay the respondent worker’s costs, assessed at $2,200 plus GST.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.