| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Fire and Rescue NSW v S [2015] NSWWCCPD 50 | ||
| APPELLANT: | Fire and Rescue NSW | ||
| RESPONDENT: | S | ||
| INSURER: | Employers Mutual Ltd | ||
| FILE NUMBER: | A1-6797/13 | ||
| ARBITRATOR: | Mr G Brown | ||
| DATE OF ARBITRATOR’S DECISION: | 12 May 2015 and 15 July 2015 | ||
| DATE OF APPEAL DECISION: | 26 August 2015 | ||
| SUBJECT MATTER OF DECISION: | Psychological injury; refusal to vacate fourth arbitration hearing date; alleged failure to adjudicate on worker’s criminal record; alleged failure to give reasons in assessment of medical evidence; causation; whether incapacity resulted from accepted psychological injury or from later criminal conduct; principles in Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40 discussed and applied; alleged denial of procedural fairness; whether injury wholly or predominantly caused by transfer; alleged failure to consider evidence relating to reasonableness of transfer; s 11A of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | TurksLegal | |
| Respondent: | Masselos & Co Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Subject to amending paragraph 1(b) of the Certificate of Determination of 12 May 2015 to delete “16 April” and to insert “16 May” in its place, the Arbitrator’s determinations of 12 May 2015 and 15 July 2015 are confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. | ||
INTRODUCTION
This appeal concerns a claim for weekly compensation, medical expenses and lump sum compensation for a psychological injury suffered in 2006 and aggravated or exacerbated by later events at work in 2012 and 2013. The employer has admitted that the worker suffered a psychological injury in 2006, but it has disputed liability for any compensation from 2013 as a result of that injury.
The employer has disputed that the worker suffered any aggravation or exacerbation injury in 2012 or 2013. If the worker suffered an exacerbation or aggravation in 2012 and/or 2013, the employer has asserted that that injury has resulted from reasonable action with respect to transfer under s 11A of the Workers Compensation Act 1987 (the 1987 Act). It asserted that, with respect to all injuries, the worker has no entitlement to weekly compensation because his incapacity has resulted from his being charged, in April 2014, with the supply of illegal drugs.
The Arbitrator found that the effects of the 2006 injury were continuing and that the worker’s entitlement to compensation resulted from that injury. Given that finding, it was not necessary for the Arbitrator to determine if the worker had suffered separate injuries in 2012 and/or 2013. Nevertheless, the Arbitrator found that the worker had also suffered separate aggravation or exacerbation injuries in 2012 and 2013. However, because the employer had not established that those injuries had been wholly or predominantly caused by reasonable conduct with respect to transfer, the employer had not made out its s 11A defence. The employer has appealed.
The main issues on appeal concern whether the…
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- Case
- [2015] NSWWCCPD 50
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed in the appeal related to the causation and assessment of the worker's psychological injury, the procedural fairness in the arbitration process, and the application of section 11A of the Workers Compensation Act 1987. Specifically, the worker argued that the arbitrator had erred in finding that his incapacity resulted from his criminal conduct rather than the psychological injury, had failed to give reasons for assessing medical evidence, and had not properly considered the reasonableness of the transfer that led to his employment termination.
The Court of Appeal found that the arbitrator had correctly identified the primary cause of the worker's incapacity as his criminal conduct rather than the psychological injury. The court emphasised the principles in Calman v Commissioner of Police, where it was held that a worker's criminal conduct could be considered in assessing the extent of a psychological injury. The Court of Appeal also held that the arbitrator had not failed to give reasons for assessing medical evidence, and had properly considered the evidence relating to the reasonableness of the transfer. Consequently, the appeal was dismissed, and the arbitrator's determinations were confirmed.
The final orders of the Court of Appeal confirmed the arbitrator's determinations with a minor amendment to the date of the Certificate of Determination, and required the employer to pay the worker's costs of the appeal.
Orders
Orders of the court
1. Subject to amending paragraph 1(b) of the Certificate of Determination of 12 May 2015 to delete “16 April” and to insert “16 May” in its place, the Arbitrator’s determinations of 12 May 2015 and 15 July 2015 are confirmed.
2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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