JA and Ma Costa Pty Ltd v Makouk

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

JA & MA Costa Pty Ltd v Makouk [2021] NSWPICPD 11

APPELLANT:

JA & MA Costa Pty Ltd

RESPONDENT:

Nada Makouk

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-4447/20

MEMBER:

Mr J Isaksen

DATE OF MEMBER’S DECISION:

26 October 2020

DATE OF APPEAL DECISION:

6 May 2021

CATCHWORDS:

WORKERS COMPENSATION – whether a “dispute” existed within the meaning of ss 289 and 289A of the Workplace Injury Management and Workers Compensation Act 1998;
Procedural fairness; Chanaa v Zarour [2011] NSWCA 199, Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 considered and applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms L Goodman, counsel

Gair Legal

Respondent:

Mr T Hickey, counsel

Law Advice Compensation Lawyers

ORDERS MADE ON APPEAL:

1.    Paragraph 1 of the Arbitrator’s Certificate of Determination dated 26 October 2020 is confirmed.

2.    The Certificate of Determination is otherwise revoked.

3.    The matter is remitted to a different non-presidential member for re-determination of whether the respondent suffered an injury in the form of an obsessive/compulsive disorder as a result of her employment and any compensation entitlements that flow from the re-determination.

INTRODUCTION AND BACKGROUND

1. JA & MA Costa Pty Ltd (the appellant employer) appeals from a decision of Arbitrator Isaksen (as he then was) dated 26 October 2020.

2. The respondent, Ms Nada Makouk, commenced employment with the appellant as a cleaner on 20 February 2017. The respondent alleged that on 27 February 2017, she was required to clean toilets and bathrooms that were in a very unclean state. The respondent began to feel unwell after work that day and her condition deteriorated over the weekend. On the following Monday, the respondent was admitted to hospital in a critical condition. She was diagnosed with pseudomembranous colitis after testing positive to clostridium difficile. The respondent spent some weeks in hospital, including a week in the intensive care unit.

3. The respondent had a long prior history of anxiety and depression on the background of a number of significant personal traumas, as well as a work related back injury some years earlier. After the respondent contracted pseudomembranous colitis, she began to excessively clean her hands and her home and developed a fear of a recurrence of the condition. She lodged a claim for compensation, alleging that the contraction of pseudomembranous colitis was work related and a further claim alleging that the incident caused an aggravation of her pre-existing psychological condition. The claims were denied.

4. Ultimately, the matter came to arbitration. The issues at arbitration were identified as:

   (a)    whether the respondent contracted the physical condition in the course of her employment;

   (b)    whether the respondent suffered a primary psychological injury, or

   (c)    if the respondent suffered a psychological injury, whether it was in the nature of a…