McCarthy v Department of Corrective Services

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			McCarthy v Department of Corrective Services [2010] NSWWCCPD 27
APPELLANT:			Anne Margaret McCarthy
RESPONDENT:			Department of Corrective Services
INSURER:			Employers Mutual Limited
FILE NUMBER:			A1-5623/09
ARBITRATOR:	Mr G Charlton
DATE OF ARBITRATOR’S DECISION:			2 November 2009
DATE OF APPEAL HEARING:		16 March 2010
DATE OF APPEAL DECISION:			22 March 2010
SUBJECT MATTER OF DECISION:			Psychological injury; section 11A of the Workers Compensation Act 1987; whether the employer’s actions were actions taken with respect to performance appraisal, discipline and/or transfer; whether the employer’s actions were reasonable; whether the worker’s admitted psychological injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline, performance appraisal and/or transfer; non compliance with section 74 of Workplace Injury Management and Workers Compensation Act 1998; issues in dispute; cause of incapacity; whether a dispute as to cause of incapacity must be particularised
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
REPRESENTATION:			Appellant:	Mr D Shoebridge, instructed by WG McNally Jones Staff
Respondent:	Mr S Hickey, instructed by Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 2 November 2009 is revoked and the following orders made in its place: (a)   The respondent employer is ordered to pay to the applicant worker weekly compensation as follows: (i) on the basis of total incapacity under section 36 of the Workers Compensation Act 1987 (‘the 1987 Act’) from 20 January 2008 until 5 May 2008 in the sum of $1,297.07 per week; (ii) on the basis of partial incapacity under section 40 of the 1987 Act from 6 May 2008 until 30 June 2008 in the sum of $297.07 per week and from 1 July 2008 to 10 August 2008 in the sum of $348.95 per week; (iii) on the basis of partial incapacity under section 38 of the 1987 Act from 11 August 2008 until 10 August 2009 in the sum of $1,079.16 per week, and (iv) on the basis of partial incapacity under section 40 of the 1987 Act from 11 August 2009 to date and continuing in the sum of $348.95 per week. (b)   The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act. (c)   It is noted that, under section 52 of the 1987 Act, the applicant worker’s entitlement to weekly compensation ceases on 15 March 2011. (d)   The respondent employer is to pay the applicant worker’s costs.  The matter is certified as complex and costs under Table 1 are increased by 30%.”
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200.00 plus GST.

BACKGROUND

1. The appellant worker, Ms McCarthy, started work as a probation and parole officer with the respondent employer, the Department of Corrective Services (‘the Department’), in July 1996.  Ms McCarthy’s case is that she sustained a psychological injury (adjustment disorder with anxiety) as a result of being heavily overworked and…