Northern NSW Local Health District (Tweed Heads Hospital) v Conaghan

[2014] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Northern NSW Local Health District (Tweed Heads Hospital) v Conaghan [2014] NSWWCCPD 54
APPELLANT:	Northern NSW Local Health District (Tweed Heads Hospital)
RESPONDENT:	Patrick Damien Conaghan
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-16041/12
ARBITRATOR:	Ms Annemarie Nicholl
DATE OF ARBITRATOR’S DECISION:	12 May 2014
DATE OF APPEAL DECISION:	28 August 2014
SUBJECT MATTER OF DECISION:	Section 4 WorkersCompensation Act 1987; injury arising out of or in course of employment; Worker injured as a result of altercation with fellow worker and its consequences; challenge to finding that injury arose out of employment; consideration of decisions in Tarry v Warringah Shire Council [1974] WCR (NSW) 1 and Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turks Legal
Respondent:	Leitch Hasson & Dent
ORDERS MADE ON APPEAL:	1.       Time to appeal is extended to 11 June 2014. 2.       The Arbitrator’s findings and orders as recorded in the Certificate of Determination dated 12 May 2014 are confirmed. 3.       The appellant is to pay Mr Conaghan’s costs of the appeal.

BACKGROUND

1. Mr Patrick Conaghan alleged that he received psychological injury arising out of or in the course of his employment with Northern NSW Local Health District (Tweed Heads Hospital) (the appellant) between 1 March 2011 and 4 May 2011. Mr Conaghan was employed by the appellant as a wardsman at the appellant’s hospital premises at Tweed Heads, New South Wales. On 1 March 2011, Mr Congahan and a fellow employee, Ms Bernadette McCullough, became involved in an altercation. Mr Conaghan was subsequently arrested by the police on 12 May 2011 and charged with the offence of common assault. Mr Conaghan entered a plea of guilty to that charge. The presiding Magistrate found Mr Conaghan guilty of the offence, but without proceeding to conviction, directed that he enter into a good behaviour bond for six months, pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

2. It was Mr Conaghan’s case before the Arbitrator, that between the date of the altercation and 4 May 2011, he had been the subject of discriminatory and harassing treatment by other members of the appellant’s staff. This included verbal abuse, constant telephone calls and a variety of other conduct which caused the injury as alleged.

3. Mr Conaghan ceased work on 4 May 2011 by reason of the disabling consequences of the alleged injury. Written notification of injury was given by Mr Conaghan to the appellant on 6 May 2011. On 27 May 2011, Mr Conaghan received written notice from the appellant’s insurer that his claim for compensation had been declined. That notice was issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

4. On 17 August 2012, a claim against the appellant was made on behalf of Mr Conaghan by his solicitors in respect of weekly compensation,…