Markulin v Healthwoods Pty Ltd - [2007] NSWWCCPD 76

WORKERS COMPENSATION COMMISSION

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

REPORTED DECISION: Markulin v Healthwoods Pty Ltd (2007) 5 DDCR 527

CITATION:Markulin v Healthwoods Pty Ltd [2007] NSWWCCPD 76
APPELLANT:  Dragica Markulin
RESPONDENT:  Healthwoods Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18491-05
DATE OF ARBITRATOR’S DECISIONS:        29 May and 3 August 2006
DATE OF APPEAL HEARING:  28 February 2007
DATE OF APPEAL DECISION:  6 March 2007
SUBJECT MATTER OF DECISION: Leave to appeal; setting aside consent orders; section 350(3) Workplace Injury Management and Workers Compensation Act 1998; consideration of Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:Oral
REPRESENTATION:  Appellant:      In person
Respondent:   Mr Anderson, solicitor, Ellison Tillyard Callanan

ORDERS MADE ON APPEAL: Leave to appeal the consent of orders made on 29 May 2006 is refused.
Time to appeal the Arbitrator’s decision of 3 August 2006 is extended until 18 September 2006.

For the reasons set out in this decision, the Arbitrator’s decision dated 3 August 2006 is confirmed.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 18 September 2006 Dragica Markulin (‘the Appellant Worker/Mrs Markulin’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against decisions, dated 29 May and 3 August 2006.

The Respondent to the Appeal is Healthwoods Pty Ltd (‘the Respondent Employer’).

Mrs Markulin was born in Croatia on 12 May 1940. At the age of 20 she moved to Germany where she worked as a machine operator. She came to Australia in 1965 and initially worked as a waitress and then in a manchester shop. She trained as a nurse in the early 1990’s and, after working at Prince Henry Hospital for a year or two, worked at Parkdale Nursing Home for three or four years before she started work with the Respondent Employer in July 1997.

Her duties consisted of sterilizing instruments, working in the recovery section (assisting patients coming out of anaesthetic after their procedure), patient admission and discharge. She alleges that she was harassed and victimised in the course of her employment resulting in her ceasing work on or about 18 June 2001.

Prior to ceasing work she alleged she experienced pain in her right shoulder as a result of over use which resulted in her being certified unfit for work from 8 to 13 December 2000. She continued her normal duties until the harassment issues arose in June 2001. Her shoulder problems apparently continued and in January 2002 she underwent an ultrasound, which showed some bicipital tendonitis.

An Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 31 October 2005 alleging that Mrs Markulin sustained a psychological injury and injury to her shoulders as a result of the nature and conditions of her employment with the Respondent Employer. It claimed weekly compensation from 1 July 2001 to date and continuing, lump sum compensation in respect…

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 76
Decision Date: 6 March 2007

CaseChat Overview and Summary

Dragica Markulin sought leave to appeal against decisions made in her workers compensation claim by the Workers Compensation Commission, constituted by an arbitrator. The claim related to injuries sustained during her employment with Healthwoods Pty Ltd. The appeal concerned the refusal of the arbitrator to set aside consent orders and the subsequent decision declining reconsideration of those orders. The appeal was dismissed by the Deputy President, Bill Roche, who found that the appeal did not meet the monetary thresholds for leave and that there were no exceptional circumstances to extend the time to appeal. The Deputy President found that the appellant had not provided evidence to support her claims that she did not consent to the settlement terms and that the arbitrator had erred in declining to reconsider the consent orders. The Deputy President concluded that the appellant's allegations, if accepted as true, would not warrant reconsideration of the consent orders and that there was no manifest injustice in the case. The appeal was dismissed, and the decision of the arbitrator was confirmed.

Orders