Neuroscience Research Australia v de Rome

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Neuroscience Research Australia v de Rome [2019] NSWWCCPD 13
APPELLANT:	Neuroscience Research Australia
RESPONDENT:	Elizabeth de Rome
INSURER:	AAI Limited trading as GIO – agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-3690/18
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	12 November 2018
DATE OF APPEAL DECISION:	11 April 2019
SUBJECT MATTER OF DECISION:	Section 151A(1) of the Workers Compensation Act 1987 – whether receipt of damages was in respect of an injury for which the employer was liable to pay compensation under the 1987 Act; Codelfa Constructions Pty Ltd v State Rail Authority [1982] HCA 24; 149 CLR 337; Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 considered and applied; Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 applied; Super IP Pty Ltd v Mijatovic [2016] NSWWCCPD 33 considered and distinguished
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hall & Willcox
Respondent:	Adams & Co
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 12 November 2018 is confirmed.

INTRODUCTION AND BACKGROUND

1. Doctor Elizabeth de Rome (the respondent) commenced employment with Neuroscience Research Australia (the appellant) as a senior research officer in January 2012 and her final contract ceased in January 2016.

2. The respondent alleged that she was bullied and harassed by her supervisor, Dr Julie Brown, during the course of her employment and lodged a formal grievance in May 2015. The grievances were listed under four headings, namely:

   (a)    she was employed under false pretences, in that her name and credibility were exploited publicly while she was excluded from involvement in the design and conduct of the study she was working on;

   (b)    her research area had been appropriated by her supervisor, who was undertaking a research program entirely based on work the respondent had done prior to commencing with the appellant;

   (c)    she had repeatedly been denied professional development opportunities, and

   (d)    she was bullied, harassed and publicly humiliated since the commencement of her employment.

3. The respondent brought a claim for weekly payments of compensation from 31 January 2016 to 3 April 2017 together with a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), on the basis of an alleged psychological injury in the nature of an adjustment disorder with depressed mood and anxiety, resulting from the above conduct. The claim was denied, and the respondent commenced proceedings in the Commission.

4. The respondent had previously lodged a “general protections” application against the appellant in the Fair Work Commission (the Fair Work application). That application was settled by way of a deed (the deed), signed by the parties on 23 November 2016.

5. The Workers Compensation Commission proceedings came to arbitration on 18 October 2018. The issues requiring determination by the Arbitrator were whether:

   (a)    the respondent suffered a work-related psychological injury;

   (b)    the respondent’s employment was the main…