Kleinbergs v Central West Pathology Service - [2007] NSWWCCPD 206

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Kleinbergs v Central West Pathology Service [2007] NSWWCCPD 206
APPELLANT:  Richard Walter Charles Kleinbergs
RESPONDENT:  Central West Pathology Service
INSURER:Treasury Managed Fund, GIO Limited
FILE NUMBER:  WCC15012-06
DATE OF ARBITRATOR’S DECISION:          9 February 2007
DATE OF APPEAL DECISION:  4 October 2007
SUBJECT MATTER OF DECISION: Section 11A Workers Compensation Act 1987; sufficiency of reasons for decision.
PRESIDENTIAL MEMBER:  Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION:  Appellant:      Higgins and Higgins
Respondent:   DLA Phillips Fox

ORDERS MADE ON APPEAL: 1. Time to appeal is extended to 15 March 2007.

2.The decision of the Arbitrator dated 9 February 2007 is confirmed.

3. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

On 15 March 2007 Richard Walter Charles Kleinbergs (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 February 2007.

The Respondent to the Appeal is Central West Pathology Service (‘the Respondent’).

The Appellant, who was born on 9 December 1959, commenced employment with the Respondent Service on 11 March 1982. He remained in that employ, excepting a period of unpaid leave of 8 months in 1999, until he ceased work on 22 October 2004. At that time a claim for compensation benefits was made against his employer which was stated to be related to a psychological injury received in the course of his employment.

The Appellant commenced his employment as a Medical Technologist and progressed to the position of Chief Hospital Scientist. That position had been held by the Appellant since 1991 and at the date of the alleged injury he was employed at the Respondent’s laboratory at Lithgow. The Respondent employed six workers at that laboratory including the Appellant. The Appellant held the senior position and his partner, it is relevant to note, Ms Allison Booth, was second in charge.

For a considerable period of time prior to October 2004 there existed at the Lithgow laboratory considerable disharmony and indeed conflict among those working there. In particular the Appellant encountered ongoing conflict with a fellow worker, Ms Gardiner, and experienced difficulties with his superiors in the Service with respect to management and support. Economic constraints which were imposed upon the Service as well as suggested under staffing at the laboratory caused the Appellant concern and gave rise to a stressful work environment.

It appears that the issue of conflict among the Lithgow laboratory staff and with other parties at the Lithgow Hospital was the subject of an investigation by a Ms Howell in approximately February of 2004. In August 2004 Ms Helen Colbey was appointed to undertake an investigation and to present a report in relation to several “protected disclosures” received by the Respondent concerning the conduct of the Appellant and Ms Booth. That investigation had been completed prior to 22 October 2004 however Ms Colbey’s report had not been presented.

The Appellant,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWWCCPD 206
Decision Date: 4 October 2007

CaseChat Overview and Summary

The appeal against the decision of the Arbitrator in the matter of Kleinbergs v Central West Pathology Service was heard by Acting Deputy President Kevin O’Grady on the papers. The Appellant, Richard Walter Charles Kleinbergs, sought leave to appeal the Arbitrator’s decision dated 9 February 2007 which dismissed his claim for workers compensation benefits. The central issue in dispute was whether the Arbitrator failed to provide adequate reasons for his decision regarding the applicability of Section 11A of the Workers Compensation Act 1987 and whether his decision was against the evidence or the weight of the evidence. The Arbitrator had found that the Appellant’s psychological injury was wholly or predominantly caused by the Respondent’s reasonable action of transferring the Appellant from Lithgow to Bathurst.

Acting Deputy President O’Grady began by considering the procedural aspects of the appeal, including the extension of time for making the appeal and the introduction of fresh evidence. The appeal was filed six days late, but O’Grady granted an extension of time due to exceptional circumstances. The Appellant sought to introduce fresh evidence in the form of the Hospital Scientists (State) Award, but O’Grady ruled that no application was made to admit this new evidence, and thus it was not considered.

O’Grady then reviewed the evidence presented before the Arbitrator, which included medical reports, statements from the Appellant, and documentary evidence from the Respondent. The Arbitrator had accepted the Appellant’s medical evidence and found that the injury was a psychological one caused by the Respondent’s action of transferring the Appellant. The Arbitrator concluded that the transfer was reasonable, and therefore no compensation was payable under Section 11A of the 1987 Act.

In assessing the grounds of appeal, O’Grady found that the Arbitrator’s reasons were adequate, and his conclusions were supported by the evidence. The Appellant’s arguments that the Arbitrator’s decision was against the evidence or failed to consider certain facts were rejected as the evidence sufficiently supported the Arbitrator’s findings. O’Grady also found that the Arbitrator properly considered the Respondent’s documents and did not err in accepting them as fact.

Lastly, O’Grady addressed the issue of the Deed of Release, which the Arbitrator had considered as an admission by the Appellant of his capacity to return to work. O’Grady disagreed with the Arbitrator’s view on the force and effect of the Deed but found that this did not impact the validity of the Arbitrator’s determination.

The appeal was ultimately dismissed, and the Arbitrator’s decision dated 9 February 2007 was confirmed. No order was made as to the costs of the appeal.

Orders