BlueScope Steel Ltd v Markovski

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69
APPELLANT:	BlueScope Steel Ltd
RESPONDENT:	Mile Markovski
INSURER:	Self-insured
FILE NUMBER:	A1-10177/12
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	11 September 2013
DATE OF APPEAL HEARNG:	10 December 2013
DATE OF APPEAL DECISION:	17 December 2013
SUBJECT MATTER OF DECISION:	Psychological injury; whether injury wholly or predominantly caused by reasonable action with respect to transfer; s 11A of the Workers Compensation Act 1987; right to cross appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Malouf, instructed by Bartier Perry
Respondent:	Mr S Moffet, instructed by Nikolovski Lawyers
ORDERS MADE ON APPEAL:	1.       For the reasons given in this decision, the Arbitrator’s determination of 11 September 2013 is confirmed. 2.       The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

1. The respondent worker, Mile Markovski, works with the appellant employer, BlueScope Steel Ltd (BlueScope), as a level 3 operator driving cranes in BlueScope’s Slab Yard. He alleged that he suffered a psychological injury (Adjustment Disorder with anxiety) on 5 January 2012 as a result of being “treated less favourably than other workers following a work injury”. The work injury referred to was an injury to Mr Markovski’s right shoulder in November 2004, which required surgery on 24 February 2010 and extensive rehabilitation.

2. Two months after the surgery Mr Markovski returned to work on selected duties, but was unable to operate all cranes. BlueScope held several meetings in 2010 and 2011 to assist Mr Markovski return to his pre-injury duties. Certain issues arose during those meetings, with Mr Markovski believing that he was being treated differently and unfairly compared to other injured workers. After modifications to one of the cranes in about December 2011, which were made to accommodate Mr Markovski’s restrictions, he was able to operate all cranes, though he did not have a formal medical clearance to do so.

3. Meanwhile, in August 2011, BlueScope announced that steel production would decrease and there would be a loss of jobs. Sufficient workers took voluntary redundancy to avoid any forced retrenchments. However, the redundancies were not even across the company and it was necessary to distribute the remaining workers across the four crews (designated A crew to D crew) in the Slab Yard.

4. The company called for a volunteer to transfer from B crew, where Mr Markovski worked, to C crew. Though a qualified worker volunteered for the transfer, BlueScope’s manager decided to transfer Mr Markovski. The manger informed him of that decision at a meeting on 5 January 2012. On being informed of the decision to transfer him, Mr Markovski immediately became anxious and developed chest pains, jaw pain, limb weakness, sweating and shaking. An ambulance took him to Wollongong Hospital where he was kept under observation for several hours but allowed home without being admitted. He returned to work on 6…