DST International Pty Limited v MacIntosh - [2005] NSWWCCPD 91

WORKERS COMPENSATION COMMISSION

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

CITATION:DST International Pty Ltd v Mackintosh [2005] NSW WCC PD 91
APPELLANT:  DST International Pty Ltd
RESPONDENT:  Belinda Mackintosh
INSURER:GIO Workers Compensation
FILE NUMBER:  WCC19371-2003
DATE OF ARBITRATOR’S DECISION:          17 June 2004
DATE OF APPEAL DECISION:  22 August 2005
SUBJECT MATTER OF DECISION: Section 10(1B) of the 1987 Act; ‘Serious and wilful misconduct’; consumption of alcohol; evidence of ‘total incapacity’; award under section 40 of the 1987 Act.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:      Rankin Nathan Lawyers
Respondent:    Peter Erman, Solicitor

ORDERS MADE ON APPEAL:

Order 1 of the decision of the Arbitrator, dated 17 June 2004, is revoked and the following decision is made in its place:

1.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 30 October 2002 to 15 January 2003 at her ‘current weekly wage’ rate, calculated in accordance with section 36 of the Workers Compensation Act 1987.
2.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for partial incapacity from 15 January 2003 to 28 February 2003 calculated in accordance with section 40 of the 1987 Act Workers Compensation Act 1987.
3.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 15 September 2003 to 16 November 2003, at the rate calculated in accordance with section 36 of the Workers Compensation Act 1987.
4.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 17 November 2003 to 17 June 2004 at the rate calculated in accordance with section 37 of the Workers Compensation Act 1987.
5.The Respondent is to be given credit for any payments of weekly compensation made to date.
6.The parties are to notify the Registrar whether they have been able to reach agreement as to exact amount of weekly compensation be paid to Ms Mackintosh pursuant to these reasons, within 14 days of the date of this decision. Failing agreement the matter is to be remitted to the Arbitrator.

Orders 2 and 3 of the decision of the Arbitrator dated 17 June 2004 are confirmed
The Respondent is to pay the costs of the appeal.

The Appeal

Belinda Mackintosh was employed part-time by DST International Pty Ltd (‘DST’) as a Receptionist from February 2002 until 29 October 2002. She was at the same time working part-time for another company Tech Pacific. Ms Mackintosh claims to have suffered a psychological injury on 29 October 2002 as a result of being sexually assaulted by a taxi driver on her way home from a work-related function, for DST, at the Sydney Opera House. She lodged a claim with DST for workers compensation benefits by way of weekly payments and reasonable medical expenses.

DST denied liability for the claim and Ms Mackintosh filed an application to resolve the dispute in the…

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 91
Decision Date: 22 August 2005

CaseChat Overview and Summary

Belinda Mackintosh was employed part-time by DST International Pty Ltd as a Receptionist and lodged a claim for workers compensation benefits after she was sexually assaulted by a taxi driver on her way home from a work-related function. DST International Pty Ltd denied liability for the claim and the matter was brought before the Commission. The Arbitrator determined in Ms Mackintosh's favour and awarded her weekly compensation and medical expenses. The Insurer, on behalf of DST International, appealed the decision. The appeal was considered on the papers. The issues in dispute were whether the Arbitrator erred in finding that Ms Mackintosh's injury was not attributable to her serious and wilful misconduct, whether the Arbitrator erred in finding that Ms Mackintosh was totally incapacitated, and whether the Arbitrator erred in awarding an amount of $432.00 in weekly compensation from 15 September 2003 and continuing, pursuant to section 40 of the 1987 Act. The court found that the Arbitrator did not err in finding that Ms Mackintosh's injury was not attributable to her serious and wilful misconduct. The court found that Ms Mackintosh's alcohol consumption did not contribute to her injury and that the Arbitrator correctly identified that the onus had shifted to Ms Mackintosh to prove, on the balance of probabilities, that the alcohol she had consumed did not contribute in any way to her injury. The court found that the Arbitrator did not err in finding that Ms Mackintosh was totally incapacitated for work as a result of her injury from 30 October 2002 to 14 January 2003 and from 15 September 2003 "to date", being the date of decision, 17 June 2004. The court found that the weight of the evidence supported Ms Mackintosh's claim to periods of both partial and total incapacity. The court found that the Arbitrator erred in awarding an amount of $432.00 in weekly compensation from 15 September 2003 and continuing, pursuant to section 40 of the 1987 Act. The court determined that Ms Mackintosh's proper entitlement was as follows: total incapacity from 30 October 2002 to 15 January 2003 at her 'current weekly wage' rate, calculated in accordance with section 36 of the 1987 Act; partial incapacity from 15 January 2003 to 28 February 2003 calculated in accordance with section 40 of the 1987 Act; total incapacity from 15 September 2003 to 16 November 2003 at her 'current weekly wage' rate, calculated in accordance with section 36 of the 1987 Act; and total incapacity from 17 November 2003 to 17 June 2004 and continuing, subject to the provisions of the 1987 Act, calculated in accordance with section 37 of the 1987 Act. The court ordered that the Respondent pay to the Applicant weekly compensation for total incapacity from 30 October 2002 to 15 January 2003 at her 'current weekly wage' rate, calculated in accordance with section 36 of the Workers Compensation Act 1987; weekly compensation for partial incapacity from 15 January 2003 to 28 February 2003 calculated in accordance with section 40 of the 1987 Act Workers Compensation Act 1987; weekly compensation for total incapacity from 15 September 2003 to 16 November 2003, at the rate calculated in accordance with section 36 of the Workers Compensation Act 1987; and weekly compensation for total incapacity from 17 November 2003 to 17 June 2004 at the rate calculated in accordance with section 37 of the Workers Compensation Act 1987. The court also ordered that the Respondent is to be given credit for any payments of weekly compensation made to date and that the parties are to notify the Registrar whether they have been able to reach agreement as to the exact amount of weekly compensation to be paid to Ms Mackintosh pursuant to these reasons, within 14 days of the date of this decision. Failing agreement, the matter is to be remitted to the Arbitrator. The court also confirmed Orders 2 and 3 of the decision of the Arbitrator dated 17 June 2004 and ordered that the Respondent is to pay the costs of the appeal.

Orders