Mitchell v Newcastle Permanent Building Society Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55
APPELLANT:	Kellie Ann Mitchell
RESPONDENT:	Newcastle Permanent Building Society Ltd
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-12823/12
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	19 July 2013
DATE OF APPEAL DECISION:	22 October 2013
SUBJECT MATTER OF DECISION:	Section 4(a) of the Workers Compensation Act 1987; arising out of employment; s 9A of the Workers Compensation Act 1987; substantial contributing factor to injury; s 10(3A) of the Workers Compensation Act 1987; real and substantial connection between the employment and the accident or incident out of which the injury arose; procedural fairness; obligation upon Arbitrator to afford a reasonable opportunity to present or meet a case
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	MRM Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s findings and the orders as found in the Certificate of Determination dated 19 July 2013 are confirmed. 2.       No order as to costs.

BACKGROUND

1. Ms Kellie Ann Mitchell (the appellant) was employed by Newcastle Permanent Building Society Ltd (the respondent) as a business loans processing officer at the respondent’s office premises in Newcastle West. Her usual working hours were between 8.30 am and 5.00 pm. Her duties were clerical in nature.

2. On 20 June 2012 Ms Mitchell, at the request of her employer, remained at work after normal working hours to conduct what was described as “a clean desk inspection”. That additional work was completed and Ms Mitchell left the premises shortly after 5.50 pm. It was her intention to walk from the work premises, at the corner of King and Union Streets, to her car, which she had earlier parked in Bull Street, to drive home. As she walked to the car, in the darkness, she tripped on the exposed roots of one of a number of fig trees located to the side of the roadway near the corner of Bull and Corlette Streets, causing her to fall.

3. Ms Mitchell received injuries to her left wrist, back, neck and left shoulder in that fall. A claim made by her for compensation benefits was declined by the respondent’s insurer. Notice of the insurer’s decision to decline liability was given to Ms Mitchell, in accordance with the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by letter dated 17 July 2012. The reasons for that decision are there stated as follows:

   “•    Your injury on 20 June 2012 was sustained whilst you were travelling from work.

   ·        Apart from the fact you were travelling from work, your journey and the incident out of which your injury arose, was not work-related.

   ·        In the absence of a real and substantial connection between your employment and the incident out of which your injury arose, no compensation is payable for your injury: section 10(3A)…