Department of Education and Training v Cathryn Wendy Ingle

Case [2003] NSWWCCPD 18

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION: Department of Education and Training v Cathryn Wendy Ingle
[2003] NSW WCC PD 18
APPELLANT: Department of Education and Training
RESPONDENT: Cathryn Wendy Ingle
INSURER: GIO Workers Compensation
FILE NO: WCC 3024-2002      
DATE OF DECISION: 22 July, 2003
PRESIDENTIAL MEMBER: Deputy President, Gary Byron
DECISION UNDER APPEAL: The Respondent (Appellant) liable to pay to the Applicant (Respondent Worker) weekly compensation from 6 June, 2001 and continuing, and medical expenses pursuant to section 60 of the Workers Compensation Act 1987, on production of accounts or receipts. Appeal re: not established that the injury arose out of or in the course of employment; that employment was not a substantial contributing factor to any injury; that there is no liability established for payment of weekly payments of compensation or medical expenses; decision not supported by the evidence and weight of evidence.
DATE OF DECISION UNDER APPEAL: 12 February 2003
HEARING/DETERMINATION OF APPEAL: Determined on the Papers
REPRESENTATION: Appellant: Rankin and Nathan Solicitors and Notaries
Respondent Worker: MacMahon Associates
ORDERS MADE ON APPEAL:

The appeal is not allowed.  The decision appealed against is confirmed.  The Appellant is to bear the costs in accordance with the Act and Regulations.

THE APPEAL

  1. On 10 March, 2003 the Department of Education and Training (“the Appellant”) lodged an appeal against the decision dated 12 February, 2003, of the Workers Compensation Commission (“the Commission”) constituted by an Arbitrator, that the Appellant is liable to pay to the Applicant (“the Respondent Worker”) weekly payments of compensation from 6 June, 2001 “to date pursuant to section 36, 37, 38 or 40 of the Workers Compensation Act 1987”, (“the 1987 Act”).  Such weekly payments were ordered to continue in accordance with the provisions of the 1987 Act.   It was further ordered that the Appellant is liable to pay the Respondent Worker’s “section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.”  The Insurer is GIO Workers Compensation (“the Insurer”).

  2. The Respondent Worker lodged an Application to Resolve a Dispute with the Commission on 4 October, 2002.  She claimed that she suffered a total incapacity for work that arose out of and in the course of her employment as a teacher with the Appellant.  She claimed that on 4 June, 2001, that she had suffered a psychological injury while employed by the Appellant, and was now unable to continue to work.  She notified the Appellant of the injury on the same day, and on 22 August, 2001 she lodged a claim for payment of weekly payments of compensation and payment of medical expenses.  The Insurer advised the Respondent Worker on 5 December, 2001 that liability for the injury and the claim for weekly payments and medical expenses, was denied.  The issues before the Arbitrator are summarized at paragraph 7 of the Arbitrator’s Statement of Reasons for Decision, and were: whether the Respondent Worker received an injury that arose out of or in the course of…

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Department of Education and Training v Cathryn Wendy Ingle [2003] NSW WCC PD 18
Case
[2003] NSWWCCPD 18
Decision Date

CaseChat Overview and Summary

In the matter of Department of Education and Training v Cathryn Wendy Ingle, the respondent worker appealed against a decision of the Commission concerning a claim for workers' compensation. The primary issue before the court was whether the respondent worker's psychological condition arose out of or in the course of her employment with the appellant. The court was also required to determine whether the employment was a substantial contributing factor to the worker's injury.

The court examined the evidence presented by both parties, including the respondent worker's testimony regarding her experiences and symptoms, as well as the medical evidence provided by the appellant. The court considered the statutory provisions of Section 352 of the Workplace Injury Management and Workers Compensation Act 1998, which governs appeals against decisions made by the Commission. The court found that the requirements of Section 352(2) were met, granting leave to appeal. However, upon reviewing the decision, the court determined that there was no legal, factual, or discretionary error in the original decision. Consequently, the appeal was dismissed, and the decision appealed against was confirmed.

The court ordered that the appellant bear the costs of the appeal in accordance with the Act and Regulations. This decision reinforces the importance of establishing a clear causal link between an employee's psychological condition and their employment for a successful workers' compensation claim.

Orders

Orders of the court

The appeal is not allowed. The decision appealed against is confirmed. The Appellant is to bear the costs in accordance with the Act and Regulations.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In summary, the Respondent Worker’s evidence is that she was under a good deal of pressure during her employment at the Scone Public School, for a variety of reasons, and experienced a number of difficult incidents and situations that caused her distress. Notwithstanding that she suffered in the way she has described, according to her evidence, she developed mechanisms to cope with her work, the pressures of her work, the situations that arose in the workplace, and the people with whom she dealt in the workplace. She did not realise that she had a psychological problem or injury, this becoming apparent to her after she had been working at Muswellbrook for a time. While she was experiencing some difficulty at Muswellbrook she said that being at that school was “great”: “I loved being in the new classroom in the school, and the boss would come down, you know, at half past one and say, ‘What are you still doing here? Go home, girl. You’ve got a family to go to.’ I thought I’d died and gone to heaven. But I was still waking up early, having trouble remembering at times. I had less to remember and I was having trouble remembering it, so, of course, the diary was under my arm all the time.” She indicated that as she was happy in what she was doing and it did not occur to her, apart from pushing herself, that there was a problem at that time. However, she experienced the “death panics” and heard the “voice” during and after the Christmas school holiday period 1999/2000, and following two specific incidents at the Muswellbrook School, she consulted Dr. D Mullins who referred to her a psychiatrist, Dr T. McDonald, whom she first saw on 15 June, 2001. According to Dr. Mullins’ report of 24 October, 2001, her first consultation with the Respondent Worker was on 10 November, 2000. The Respondent Worker indicated in cross-examination that she had not mentioned any workload problems to Dr. Mullins as at 12 June, 2001: “I don’t think I mentioned any problems at that stage because I wasn’t really able to put things together, as she said in the report.” A further comment concerning the Respondent Worker’s view of the development of her condition is found at page 43 of the transcript when in answer to a question regarding the history of the events, she said “It was probably not until it became such a problem and I had been analyzing other health issues that weren’t there that I had to start to find what it was.” When asked in cross examination if her symptoms of feeling sick and losing her voice were in evidence before she started at Scone, she said “I think there may have been one but, then, I was doing a lot of standing on a – in the playground over other children and talking, which I hadn’t done before, so – but it would be strong and fine and then it would close and then sometimes it would just not be there at all.” Medical evidence. As previously stated, the Appellant does not dispute that the Respondent Worker suffers a significant psychological condition but contends that no such injury arose out of or in the course of her employment, and in the alternative, that the employment with the Appellant was not a substantial contributing factor to any injury as alleged, or at all. The fact and the general nature of her condition are not in issue.

Decision

Reasons for decision

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”) provides:“352Appeal against decision of Commission constituted by Arbitrator(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and(b)at least 20% of the amount awarded in the decision appealed against.(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.(4)An appeal can only be made within 28 days after the making of the decision appealed against.(5)An appeal under this section is to be by way of review of the decision appealed against.(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.” The requirements of section 352(2) are met. Leave to appeal is granted. The appeal was lodged with the Commission on 10 March, 2003, within 28 days of the making of the decision appealed against, pursuant to section 352(4). It was necessary for the Commission to establish that all documents in relation to the appeal had been correctly served by and upon the parties, and this has been verified as being the case. The review of the decision appealed against may proceed, pursuant to section 352(5). An outline of the nature of an appeal to a Presidential member is set out in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 at paragraph 18, as follows: “A Presidential member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly, it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 30 (3 August 2000)).”

Ratio Decidendi

Legal Principle Established

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