Car v Vanguarde Pty Ltd

[2020] NSWWCCPD 71

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	CAR v Vanguarde Pty Ltd [2020] NSWWCCPD 71
APPELLANT:	CAR
RESPONDENT:	Vanguarde Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-4934/19
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	31 August 2020
DATE OF APPEAL DECISION:	9 December 2020
SUBJECT MATTER OF DECISION:	Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – factors to take into account when determining whether to allow a reconsideration of a decision – Samuel v Sebel Furniture Ltd [2006] NSWCCPD141; 5 DDCR 482 applied; s 267 of the 1998 Act – the objectives of the Commission.
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Horan, counsel
Turner Freeman
Respondent:
Mr S Grant, counsel
Hall & Willcox
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s Certificate of Determination dated 31 August 2020 is confirmed.

INTRODUCTION AND BACKGROUND

1. Mr CAR (the appellant) was employed by Vanguarde Pty Ltd (the respondent) as a Senior Property Manager. The appellant’s employment with the respondent was terminated on 1 December 2017. The appellant was dismissed after a random compliance check disclosed irregularities in the respondent’s trust account wherein payments from the trust account were made into the appellant’s personal bank account.

2. The appellant made a claim for compensation, alleging psychological injury as a result of an “overbearing workload, feeling of hostility from other staff and due to an ordeal in which he accidently misappropriated funds.”[1] The date of injury was deemed to be 1 December 2017. The respondent initially accepted liability and paid weekly compensation and treatment expenses.

   [1] Application to Resolve a Dispute (ARD) Part 4 – Injury details.

3. On 4 April 2019, the respondent disputed liability for the injury, raising the following issues:

   (a)    the appellant did not suffer an injury pursuant to s 4(a) and s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act);

   (b)    the appellant’s employment was not the main contributing factor to any disease injury (s 4(b)(i) of the 1987 Act) or to the aggravation acceleration, exacerbation or deterioration of a disease (s 4(b)(ii) of the 1987 Act);

   (c)    the psychological injury was caused by the reasonable action taken by the respondent with respect to performance appraisal, discipline or dismissal and was therefore not compensable (s 11A(1) of the 1987 Act);

   (d)    at the time of the injury, the appellant was acting in contravention of statutory or other regulation applicable to the appellant’s employment, so that the injury was solely the result of serious and wilful misconduct in the form of a fraud (s 14 of the 1987 Act);

   (e)    treatment expenses were not reasonably necessary, and

   (f) the appellant did not give notice of injury or make a claim within the time prescribed by ss 260 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2]

   [2] ARD, pp 49–55.

4. The appellant commenced proceedings in the Commission, claiming ongoing weekly…