Lindsay v IMB Ltd

[2019] NSWWCCPD 7

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lindsay v IMB Ltd [2019] NSWWCCPD 7
APPELLANT:	Chimene Lindsay
RESPONDENT:	IMB Ltd
INSURER:	GIO Workers Compensation as agent for icare NSW
FILE NUMBER:	A1-2371/18
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	12 September 2018
DATE OF APPEAL DECISION:	1 March 2019
SUBJECT MATTER OF DECISION:	Psychological injury – application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Khan Legal
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s Certificate of Determination dated 12 September 2018 is revoked. 2.     The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION AND BACKGROUND

1. Chimene Lindsay (the appellant) was employed by IMB Ltd (the respondent) from 3 August 2010. She was a loans assessor. Interpersonal conflicts developed, particularly from about December 2016 onwards. Various meetings were held to deal with these. The appellant eventually stopped work on 9 August 2017. She saw her general practitioner, Dr Zureigat, on that date, complaining of feeling “very anxious and … betrayed”, and giving a history of “bullying and harassment at workplace … going on for the past two months”. She was put off work and has not resumed.[1]

   [1] Application to Admit Late Documents dated 26 July 2018 (AALD), p 44.

2. The respondent’s insurer paid compensation on a provisional basis from 28 August 2017 to 5 November 2017.[2] On 9 November 2017, the insurer issued a s 74 notice denying liability. This was on the basis that employment was not a ‘substantial contributing factor’ to injury.

   [2] AALD 26.7.18, p 62.

3. On 9 May 2018 the appellant commenced proceedings, seeking weekly payments and the cost of medical and related treatment, in respect of psychological injury alleged to have occurred on 1 July 2017, relying on “various incidents occurring in the workplace”. An arbitration hearing was held on 13 August 2018, in which both parties were represented by counsel. There were no applications to cross-examine or to adduce oral evidence. The matter proceeded on the written material, counsel addressed, and the Arbitrator reserved her decision. A Certificate of Determination, accompanied by 17 pages of reasons, was issued on 12 September 2017, in which there was an award for the respondent.[3] This appeal is against that decision.

   [3] Lindsay v IMB Limited [2018] NSWWCC 213 (Reasons).

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:

   “(6)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have…