Heyworth v VMWare Australia Pty Limited

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Heyworth v VMWare Australia Pty Limited [2019] NSWWCCPD 64
APPELLANT:	David Heyworth
RESPONDENT:	VMWare Pty Limited
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-134/19
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	24 April 2019
DATE OF APPEAL DECISION:	11 December 2019
SUBJECT MATTER OF DECISION:	Whether the Arbitrator, having found injury, was correct to find that the appellant had not made out a case of resultant incapacity for two closed periods between 1 December 2013 and 2 March 2014 and 1 October 2015 and 18 April 2016
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Morgan, counsel
Stacks Goudkamp
Respondent:
Mr G Young, counsel
Hall & Wilcox
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s Certificate of Determination of 24 April 2019 is confirmed.

INTRODUCTION

1. The appellant worker appeals from a decision of an Arbitrator finding that he had not made out a case of incapacity in respect of two closed periods, that is, from 1 December 2013 to 2 March 2014 and from 1 October 2015 to 18 April 2016.

2. This was a finding that the appellant had not discharged the onus upon him of establishing that during those periods he had “No current work capacity” for the purposes of s 32A of the Workers Compensation Act 1987 (the 1987 Act). The nub of the decision can be refined to saying that the Arbitrator was not persuaded that during either of the periods, the appellant was not able to work either in his pre-injury role or in suitable employment.

3. The Arbitrator’s decision was against a background of a finding that the appellant had suffered employment injury with the respondent, namely a major depressive disorder and associated symptoms, arising from stress at work.

4. The appellant’s entitlement to recover from the respondent medical expenses associated with the treatment of his work-related condition was also in contest before the Arbitrator. On that matter he found in favour of the appellant and there is no appeal or cross-appeal from that decision.

BACKGROUND

1. In respect of the background to this appeal, I do not think it is necessary to do more than mention the following:

   (a)    it was not contested that the appellant had sustained the abovementioned injury by way of psychological or psychiatric condition arising out of or in the course of his employment with the respondent;

   (b)    the Arbitrator found, in reaching his ultimate decision, that the appellant’s claim was not precluded by the legislative provisions requiring notice of claim and timely claim, and

   (c)    the decision that there was no relevant incapacity was a factual one, as the Arbitrator’s decision recognised.[1]

   [1] Heyworth v VMWare Australia Pty Ltd [2019] NSWWCC 145 (Reasons), [121].

2. It has not been suggested in the rival submissions of the parties to this appeal that there was any misconception of the legal approach or standard to be applied in determining whether the appellant was…