Grasa v Roads & Maritime Services

[2013] NSWWCCPD 30

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Grasa v Roads & Maritime Services [2013] NSWWCCPD 30
APPELLANT:	Marion Grasa
RESPONDENT:	Roads & Maritime Services
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-8300/12
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:	25 February 2013
DATE OF APPEAL DECISION:	27 May 2013
SUBJECT MATTER OF DECISION:	Psychological injury; relevance and effect of consent orders; application of principles in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; failure to consider relevant medical evidence; findings based on information not in evidence; application of principles in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419; alleged bullying and harassment; perception of real events; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hennikers Solicitors
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 25 February 2013 is revoked and the matter is remitted to a different Arbitrator for re-determination. 2.       The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

BACKGROUND

1. Because of various events at work between 2007 and 2009, the appellant worker, Marion Grasa, alleged that he suffered an Adjustment Disorder and Depressed Mood. He stopped work because of his condition on 27 November 2009 and claimed compensation against the respondent employer, Roads & Maritime Services. The respondent’s insurer disputed liability for Mr Grasa’s condition and he commenced proceedings in the Commission seeking weekly and other compensation.

2. The Commission listed his claim for conciliation and arbitration on 24 August 2011. On that day, the parties agreed to settle the claim on condition that Mr Grasa discontinue his claim and the respondent pay his costs. The settlement provided for the following consent orders, which are dated 25 August 2011:

   “1. The respondent is to re-credit leave taken in the period 1 July 2010 to 18 March  2011 on a voluntary basis.

   2.   The applicant otherwise agrees and admits that he has no other entitlement to weekly compensation to date as a result of the injury pleaded in the ARD

   3. The respondent is to meet section 60 expenses incurred to date in respect of the injury pleaded on a voluntary basis on production of accounts, receipts or Medicare charge.

   4.   The applicant is to recommence employment with the respondent on 12 September 2011 as a mechanic at the Bomaderry depot on the terms agreed between the parties set out in a document marked “Annexure A” to the agreed orders signed by all parties and included in the Commission file, in consultation with John Dinan and on the basis that garaging shall occur at Lake Illawarra South.”

3. The…