Department of Corrective Services v Evans - [2005] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Department of Corrective Services v Evans [2005] NSW WCC PD 58
APPELLANT:  Department of Corrective Services
RESPONDENT:  Sydney Evans
INSURER:NSW Treasury Managed Fund managed by GIO General Ltd
FILE NUMBER:  WCC17068-2003
CERTIFICATE OF DETERMINATION:          22 July 2004
DATE OF APPEAL DECISION:  30 June 2005
SUBJECT MATTER OF DECISION:                Weight of evidence, psychological injury, fresh issues on appeal.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION:  Appellant:    Phillips Fox Solicitors
Respondent: Firths Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to bear the costs of the appeal.

THE APPEAL

Sydney Evans was employed by the NSW Department of Corrective Services as a Prison Officer when, on 7 May 1998, he was harassed and abused in his car on his way to work. He believes the perpetrators were former prisoners who recognised him from his uniform. Following this incident Mr Evans was diagnosed with ‘Post Traumatic Stress Disorder’ (‘PTSD’). He received medical treatment and had some time off work. Mr Evans claimed to have suffered a second, similar, incident of harassment on his way to work on 20 July 2000. He was again treated for PTSD.

On 16 February 2001, while at home, unable to work as a result of his PTSD, Mr Evans had a fall and seriously injured his left arm. Mr Evans claims that the fall was due to a blackout brought on by the medication he was taking for his diagnosed PTSD. He argues that the injury to his left arm is therefore causally related to his employment and has claimed for compensation from his employer for permanent impairment of the left arm (at or above the elbow) and related, reasonable medical expenses.

NSW Treasury Managed Fund, as managed by GIO General Limited (‘GIO’), the workers compensation insurer of the Department of Corrective Services, has denied liability for the claim. GIO disputes that the injury to Mr Evans left arm ‘arose out of or in the course of his employment’ as a Prison Officer with the Department.

Mr Evans has also claimed workers compensation for permanent impairment to his left leg. Unlike the injury to his left arm, there is no dispute between the parties as to whether this injury is connected to his employment. It is thus not in issue in this appeal.

A Commission Arbitrator found that Mr Evans injury to his left arm, suffered on 16 February 2001, “was causally related to work injuries which occurred on 7 May 1998 and 20 July 2000”. The Arbitrator ordered that the employer pay Mr Evans medical expenses in relation to the injury (section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)) and that the matter be referred to an Approved Medical Specialist (‘AMS’) for assessment. Ultimately the question of the degree of permanent impairment, if any, of Mr Evans left arm and left leg, are medical issues and must be…

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.

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Details

Case: [2005] NSWWCCPD 58
Decision Date: 30 June 2005

CaseChat Overview and Summary

The appeal in Department of Corrective Services v Evans was brought by the Department of Corrective Services, the employer of Sydney Evans, a prison officer who was injured on two occasions. The employer's insurer, GIO General Limited, had denied liability for compensation for the injuries Mr Evans sustained. Mr Evans had claimed workers' compensation for a left arm injury he sustained when he fell at home. The employer had accepted that Mr Evans had suffered a psychological injury from two incidents of harassment at work, but denied that the left arm injury was related to the employment. The Arbitrator had found that the injury was related to the employment and ordered compensation. GIO appealed, arguing that the Arbitrator had erred in failing to consider the evidence properly and in failing to determine whether Mr Evans had suffered a work-related psychological injury. The appeal was heard on the papers, without a hearing.

The legal issues were whether the Arbitrator had erred in making his decision and whether the issue of the psychological injury being work-related was properly before him. The court found that the Arbitrator had properly considered the evidence, including the medical reports, and had not erred in finding for Mr Evans. The court also found that the issue of the psychological injury being work-related was not properly before the court as it had been conceded by GIO at the arbitration hearing. The court found that GIO was raising a fresh issue on appeal that was not in dispute before the Arbitrator. The Arbitrator's decision was affirmed and GIO was ordered to pay the costs of the appeal.

This case shows that the Arbitrator's decision was properly made on the evidence and that the employer's insurer was not entitled to raise fresh issues on appeal that were not in dispute before the Arbitrator. The principles of procedural fairness and the binding effect of the conduct of a party's case in proceedings before the Commission were applied. The court found that the Arbitrator had exercised his discretion properly in making his decision and that the employer's insurer had not demonstrated any legal, factual or discretionary error on the part of the Arbitrator.

Orders