Cumberland City Council v Davis

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Cumberland City Council v Davis [2023] NSWPICPD 83

APPELLANT:

Cumberland City Council

RESPONDENT:

Karen Davis

INSURER:

StateCover Mutual Limited

FILE NUMBER:

A1-W1940/23

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

21 December 2023

ORDERS MADE ON APPEAL:

1. Leave to appeal the interlocutory decision dated 21 September 2023 pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted.

2.     Order 1 of the Senior Member’s Direction dated 21 September 2023 is confirmed.

3.     Order 2 of the Direction dated 21 September 2023 is revoked.

4.     The matter is remitted to the President for referral to a Medical Assessor in accordance with Orders 1, 2 and 3 of the Senior Member’s determination dated 28 August 2023.

5.     The documents to be forwarded to the Medical Assessor are:

(a)   Application to Resolve a Dispute and attached documents, and

(b)   Reply to Application to Resolve a Dispute and attached documents;

(c)    Applications to Admit Late Documents and attachments dated 7 June 2023 and 17 August 2023;

(d)   The supplementary report of Dr Abhishek Nagesh, as redacted in accordance with the Senior Member’s determination.

CATCHWORDS:

WORKERS COMPENSATION – Leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – Mohareb v State of New South Wales [2023] NSWCA 289 applied – whether error in the exercise of discretion – House v King [1936] HCA 40

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms K Ralph, solicitor

Bartier Perry Lawyers

Respondent:
Mr A McDonnell, solicitor
McDonnell Schroder
DECISION UNDER APPEAL
SENIOR MEMBER:	Ms E Beilby
DATE OF MEMBER’S DECISION:	21 September 2023

INTRODUCTION AND BACKGROUND

1. This appeal concerns a claim made by Ms Karen Davis (the respondent) in respect of an incident that occurred on 30 December 2020 in the course of her employment as a parking patrol officer with Cumberland City Council (the appellant). The incident involved an aggressive member of the public who believed (incorrectly) that the respondent had booked him for illegally parking his car. When the respondent retreated to her car, the man slammed the door of her car, catching her left ankle, which had previously been injured in an earlier work-related incident. The respondent suffered further injury to her left ankle and a psychological injury diagnosed as post-traumatic stress disorder.

2. The respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 19% whole person impairment resulting from the psychological injury. The claim was disputed by the appellant.

3. The respondent relied upon an assessment from Dr David Kumagaya, her treating psychiatrist, who assessed her whole person impairment as 19%. He made no deduction for any secondary psychological injury, pre-existing condition, or non-work related causes. The appellant qualified Dr Abhishek Nagesh, consultant psychiatrist, to provide an opinion in respect of liability for the injury and to…