Gray v Busways Gosford EMP Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124
APPELLANT:		Kelly Gray
RESPONDENT:		Busways Gosford EMP Pty Limited
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-1979/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		15 June 2009
DATE OF APPEAL DECISION:		6 October 2009
SUBJECT MATTER OF DECISION:		Psychological injury; treatment of evidence and issues; section 11A Workers Compensation Act 1987; section 74 Workplace Injury Management and Workers Compensation Act 1998; failure by insurer to properly identify issues in dispute
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	PK Simpson & Co
Respondent:	Lucas & Staggs Lawyers
ORDERS MADE ON APPEAL:		Paragraphs one and two of the Arbitrator’s determination of 15 June 2009 are revoked and the following orders made: “1.     Award for the applicant worker under section 36 in the sum of $341.68 per week from 28 August 2007 until 11 November 2007. 2.       The respondent employer is to pay the applicant worker’s section 60 expenses. 3.       The respondent employer is to pay the applicant worker’s costs as agreed or assessed.”
The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $2,200 plus GST.

BACKGROUND

1. The worker, Kelly Gray, started work as a casual bus cleaner for the respondent, Busways Gosford EMP Pty Limited (‘Busways’), at its Kincumber depot in September 2006.  Her supervisor was Scott Dyble.  She had no problems at work until May 2007 when she noticed a change in attitude of two co-workers, Bill Morrison and Lorraine Harris, also casual cleaners.

1. Ms Gray’s relationship with her co-workers deteriorated between May and August 2007 resulting in her ceasing work on 28 August 2007. 

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 16 March 2009, Ms Gray sought weekly compensation from 28 August 2007 to date and continuing.  Though her Application alleged four separate injuries, her claim essentially came down to two allegations.  First, that she suffered an injury to her back, neck and right arm as a result of performing heavy repetitive duties with Busways as a cleaner between September 2006 and August 2007.  Second, that she received a psychiatric injury in the form of depression, anxiety and panic attacks as a result of “work overload, inappropriate behaviour, abuse, humiliation, insults, being picked on, victimised, harassed, threatened, verbally abused, called names, and being belittled in the presence of others on 18 May 2007 and/or between January and November 2007[sic]”.

1. The section 74 notice served by Busways’ insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), on 11 October 2007 identified only three issues in dispute, namely:

(a)whether Ms Gray had received an injury;

(b)if she had received an injury, whether her employment was a substantial contributing factor to that injury, and

(c)whether any psychological injury received by her was wholly or predominantly caused by reasonable action taken or proposed to be taken by…