Cadbury Schweppes Pty Ltd v Davis

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4
APPELLANT:		Cadbury Schweppes Pty Ltd
RESPONDENT:		Deanne Davis
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-6305/10
ARBITRATOR:	Ms J Connelly
DATE OF ARBITRATOR’S DECISION:		18 October 2010
DATE OF APPEAL DECISION:		31 January 2011
SUBJECT MATTER OF DECISION:		Personal injury; s 4 of the Workers Compensation Act 1987; whether psychological condition resulted from physical injuries; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; unsatisfactory preparation by worker’s solicitors; unsatisfactory Reply by employer’s solicitors
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	P K Simpson & Co
ORDERS MADE ON APPEAL:		Paragraphs 1 and 2 of the Arbitrator’s findings in the Certificate of Determination dated 18 October 2010 are revoked and the following findings made in their place: “1.  As a result of her injuries on 23 August 2000, the applicant developed a psychological condition, namely chronic adjustment disorder with mixed anxiety and depressed mood.” All other findings and orders in the Certificate of Determination dated 18 October 2010 are confirmed.

BACKGROUND

1. The respondent worker, Ms Davis, started work with the appellant employer, Cadbury Schweppes Pty Ltd (Cadbury), as a sales administration clerk in October 1998. She injured her back and neck when she fell from a chair in the course of her employment on 23 August 2000. At the time of the fall, she was 36 weeks pregnant with her first child.

2. She returned to work the following day, but left after one hour because she was unable to sit due to pain. She returned to work on 1 September 2000 and worked with pain until she took planned maternity leave on 10 September 2000. She gave birth on 25 September 2000.

3. While on maternity leave, Ms Davis attempted one day’s temporary office work with a different employer, but was unable to cope with the pain. She resigned her employment with Cadbury in 2001 and remained unemployed until 2003, when she fell pregnant and sought part-time employment, which she obtained as a medical secretary at Primary Health Care Medical Centre. She continued that work until September 2008.

1. In proceedings commenced in the Commission in 2006, Ms Davis sought weekly compensation from 23 August 2000 to date and continuing, and lump sum compensation. She described her injuries as “neck, back, left leg, sexual organs and anxiety and/or depression”. Cadbury settled this claim on 9 October 2006 on the basis that the claim for weekly compensation be discontinued and the claim for lump sum compensation be referred to an Approved Medical Specialist (AMS). Cadbury agreed to make voluntary payments of weekly compensation at follows:

   (a)     $250 per week from 1 December 2000 to 25 November 2003;

   (b)     $250 per week from 1 March 2004 to 28 May 2006;

   (c)     $300 per week from 29 May…