Boral Recycling Pty Ltd v Figueira

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41
APPELLANT:	Boral Recycling Pty Ltd
RESPONDENT:	Angelia Figueira
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4577/13
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	10 March 2014
DATE OF APPEAL DECISION:	4 July 2014
SUBJECT MATTER OF DECISION:	Finding of no current work capacity; weight of evidence; relevance of worker’s applications for full-time employment; assessment of medical evidence; s 32A of the Workers Compensation Act 1987; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; alleged failure to give reasons
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray
Respondent:	Steve Masselos & Co
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 10 March 2014 is confirmed. 2.     No order as to costs.

INTRODUCTION

1. This appeal concerns an employer’s challenge to an Arbitrator’s finding that the worker had no current work capacity between 1 March 2013 and 30 June 2013 and that her work capacity beyond that date was 21 hours per week. Essentially, it involves a challenge to the weight the Arbitrator gave to evidence that the worker had made numerous job applications in a period when the Arbitrator found, consistent with medical certificates from the treating general practitioner, that the worker had no current work capacity.

BACKGROUND

1. The respondent worker, Angelia Figueira, worked for the appellant employer, Boral Recycling Pty Ltd (Boral), as a personal assistant from January 2010 until she was made redundant on 28 February 2013, having stopped work, because of her injury, on 8 December 2012. She had previously worked for one of Boral’s related companies between 2003 and 2010.

2. Ms Figueira alleged that she suffered a psychological injury as a result of having been harassed, criticised and victimised by her managers and work colleagues from August 2010 until February 2012. The reference to February 2012 was clearly an error and, though the pleadings do not appear to have been amended, the case proceeded on the basis that the correct date was February 2013.

3. By letter dated 31 October 2012, Ms Figueira notified Boral’s insurer, QBE Workers Compensation (NSW) Ltd (QBE), of her claim for compensation and gave a date of injury of 8 October 2012. QBE disputed liability for the claim.

4. In an Application to Resolve a Dispute (the Application) filed with the Commission on 26 March 2013, Ms Figueira claimed weekly compensation from 15 October 2012 to 26 October 2012 and from 6 December 2012 (later amended to 9 December) to date and continuing, together with a general order for the payment of hospital and medical expenses, as a result of her psychiatric injury.

5. At the arbitration, Boral disputed injury, whether employment was the main contributing factor to any disease injury, whether the injury had been wholly or predominantly caused by reasonable action with respect to performance appraisal,…