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Delta Electricity v Healey

Delta Electricity v Healey

Case [2006] NSWWCCPD 143 10 July 2006

Compensatory Damages

Aggravated & Exemplary Damages

Unconscionable Conduct

Compensation payable despite existing incapacity

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Delta Electricity v Healey [2006] NSWWCCPD 143
APPELLANT:  Delta Electricity
RESPONDENT:  Brian Healey
INSURER:Self insurer
FILE NUMBER:  WCC20614-04
DATE OF ARBITRATOR’S DECISION:          7 June 2005
DATE OF APPEAL DECISION:  10 July 2006
SUBJECT MATTER OF DECISION: Aggravation of depression; psychological injury; adequacy of reasons; sections 4, 9A, 11A and 48 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      Bartier Perry, Solicitors
Respondent:   Whitelaw McDonald,
Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 June 2005 is revoked and the following decision is made in its place:
1.Award in favour of the respondent in respect of the worker’s claim for weekly payments of compensation and for expenses under section 60 of the Workers Compensation Act 1987.
2.Each party pay its/his own costs.

No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

Brian Healey (‘the worker’) was born on 6 February 1953 and lives at Fishing Point, New South Wales which is, it appears, on the shores of Lake Macquarie near Toronto. Since 23 September 1980 he has worked in various capacities for Delta Electricity (‘Delta’) and its predecessors at Munmorah Power Station and other power stations in New South Wales. In latter years his employment was in senior management roles.
He suffered several physical injuries in the course of his employment, namely: a fractured calcaneus on 11 April 1999 which was the subject of proceedings in the Compensation Court and a back injury on 7 April 2003.
His present claim for compensation in the Workers Compensation Commission (‘the Commission’) relates however to psychological/psychiatric injury causing total incapacity since 21 July 2004. The alleged origins of this claimed injury lie in Delta’s actions or failures in dealing with his application for retirement on medical grounds and also in what is described by the worker as a ‘campaign of harassment and victimisation perpetrated by Delta Electricity and management’.
A Commission Arbitrator decided that he was entitled to compensation and it is from that determination that the present appeal is sought to be brought.

THE DECISION UNDER REVIEW

The ‘Amended Certificate of Determination’, dated 7 June 2005 records the Arbitrator’s orders as follows:
·The respondent to pay the applicant weekly payments of compensation for the period 21 July 2004 to 21 September 2004 at the rate of $1,373.10 gross a [sic] per week pursuant to section 36.
·From 1 October 2004 to 18 January 2005 payments at $1,398.38 gross per week pursuant to section 36.
·From the period 19 January 2005 to 31 March 2005 payments at $328.90 gross per week pursuant to section 37.
·From the period 1 April 2005 to date and continuing at the rate of $334.10 gross per week pursuant to section 37.
·The respondent pay the Applicants section 60 expenses in the sum of $2,022.85.
·The Respondent to pay the Applicants costs as agreed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Delta Electricity v Healey

Details

AGLC: Delta Electricity v Healey [2006] NSWWCCPD 143
Case: [2006] NSWWCCPD 143
Decision Date: 10 July 2006

CaseChat Overview and Summary

Delta Electricity appealed against a decision of the Workers Compensation Commission constituted by an Arbitrator that Brian Healey was entitled to compensation for psychological injury caused by Delta's actions in relation to his application for retirement on medical grounds. The Arbitrator found that Delta's treatment of the worker's retirement application constituted a compensable aggravation of the worker's pre-existing depression and awarded the worker weekly payments of compensation and expenses. Delta argued that the Arbitrator's decision was in error and that the worker's psychological injury was not compensable under the Workers Compensation Act 1987 (NSW). The Arbitrator's reasons were found to be adequate, but the Arbitrator erred in finding that Delta's actions constituted a compensable aggravation of the worker's depression and in finding that section 48 of the 1987 Act applied. Delta was found to be entitled to succeed on the appeal and the Arbitrator's decision was revoked. The worker's claim for compensation was dismissed and each party was ordered to pay its own costs.

Orders