Eureka Operations Pty Ltd v Lewis - [2007] NSWWCCPD 143

WORKERS COMPENSATION COMMISSION

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

CITATION:Eureka Operations Pty Limited v Lewis [2007] NSWWCCPD 143
APPELLANT:  Eureka Operations Pty Limited
RESPONDENT:  Anne Lewis
INSURER:Coles Group Limited
FILE NUMBER:  WCC14312-06
DATE OF ARBITRATOR’S DECISION:          18 December 2006
DATE OF APPEAL DECISION:  18 June 2007
SUBJECT MATTER OF DECISION: Psychological injury; finding of total incapacity; weight of evidence; application of Sections 4, 9A and 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Lander & Rogers
Respondent: Napier Keen

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 18

December 2006 is confirmed.
2.The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 16 January 2007, Eureka Operations Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’)

The document was initially rejected by the Registry for failure to comply with Rule 16.2(1) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). The application was resubmitted with appropriate submissions and accepted by the Commission on 19 January 2007.

The Respondent to the appeal is Anne Lewis (‘the Respondent’).

The Respondent was born on 15 June 1953. She commenced employment with the Appellant in about 2004 however, she was employed by the Respondent’s predecessors since about 1994. She was employed as either a manager or second in charge manager at various service stations, and since about 2004, those known as “Coles Express”.

When the Respondent initially commenced employment in around 1994, her hours of work were from 6:00am until 2:00pm Monday to Friday. Subsequently they changed from 6:00am to 12:00pm and then from 8:00am to 4:00pm. The Appellant took over the operation around Christmas 2004, and the Respondent apparently remained on her usual hours. In June 2005, the Respondent moved to the Appellant’s Baulkham Hills premises. In about December 2005, the Respondent (together with other staff) was advised by the Appellant that there were to be changes in shifts and locations commencing in 2006. The Respondent claimed that on 25 January 2006, she was notified that the new roster had been set in place. On viewing the roster, she learned that she would be working three out of five shifts concluding at 10:00pm or 11:00pm, and that her hours had been reduced from 40 to 38 hours per week.

The Respondent claimed that she was concerned for her safety in needing to close up late at night and that, as a consequence of her employer’s actions in altering the roster, she developed a reactive anxiety/depressive/adjustment disorder, and was incapacitated for work.

The Respondent made a claim for compensation on the Appellant’s insurer, Coles Group Limited (‘Coles’). By letter dated 17 March 2006, Coles denied liability on the basis that, pursuant to the provisions of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) “… the actions of Eureka Operations with…

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: [2007] NSWWCCPD 143
Decision Date: 18 June 2007

CaseChat Overview and Summary

Eureka Operations Pty Limited (‘Eureka’) sought leave to appeal a decision of the Workers Compensation Commission (‘the Commission’) to compensate Anne Lewis (‘Ms Lewis’) for a psychological injury sustained in the course of her employment with Eureka. Ms Lewis claimed that she suffered a reactive anxiety/depressive/adjustment disorder as a result of a roster change that required her to work three late night shifts each week. The Arbitrator awarded Ms Lewis weekly benefits compensation from 30 January 2006 to 29 July 2006, and from 30 July 2006 to the date of the decision, as well as medical expenses. Eureka appealed the decision on eight grounds, including the Arbitrator’s finding that Ms Lewis was totally incapacitated from 30 January 2006 to date and continuing, the admission of Ms Lewis’s clinical notes, the application of section 11A of the Workers Compensation Act 1987, and the Arbitrator’s consideration of irrelevant factors in determining the issue of incapacity. The Acting Deputy President of the Commission confirmed the Arbitrator’s decision, finding that the Arbitrator’s determination was consistent with the totality of the evidence before him and that his determination of questions of fact was supported by the evidence. The Acting Deputy President found that there was sufficient evidence to support the Arbitrator’s primary finding of fact on the issue of incapacity, and that the Arbitrator was entitled to base his award on the evidence and circumstances presented by Ms Lewis at the time of the Arbitration hearing.

Orders