NSW Department of Community Services v Atkinson - [2005] NSWWCCPD 99

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NSW Department of Community Services v Atkinson [2005] NSW WCC PD 99
APPELLANT:  NSW Department of Community Services
RESPONDENT:  Stephen John Atkinson
INSURER:NSW Treasury Managed Fund
FILE NUMBER:  WCC14207-04
DATE OF ARBITRATOR’S DECISION:          13 April 2005
DATE OF APPEAL DECISION:  26 August 2005
SUBJECT MATTER OF DECISION: Fresh Evidence; weight of evidence; discretion; ‘substantial contributing factor’, section 9A of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:        Hunt & Hunt Lawyers
Respondent:     Self Represented

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

Stephen Atkinson was the Casework Manager - Out of Home Care at the Coffs Harbour Community Service Centre of the NSW Department of Community Services (‘DOCS’) when, in October 2003, he claims to have suffered a psychological injury arising out of his employment.

The NSW Treasury Managed Fund is the workers compensation insurer for the NSW Government. The fund is managed by GIO Workers Compensation (‘the Insurer’) who appeared for and on behalf of DOCS in the Commission proceedings.

Mr Atkinson represented himself in proceedings before the Arbitrator and in the appeal. The Insurer was legally represented.

Mr Atkinson claims compensation by way of weekly benefits from 16 October 2003 and continuing, and medical expenses. DOCS paid him weekly compensation from 16 October 2003 until 11 December 2003. Liability for the injury was then denied on the basis that the injury was not related to Mr Atkinson’s employment with DOCS and that his employment was not a ‘substantial contributing factor’ to his psychological condition.

Mr Atkinson returned to work on 5 November 2004 and worked for two days per week. He has since had a graduated return to full time work.

The dispute went before an Arbitrator who conducted a conciliation and arbitration on 15 November 2004. On 13 April 2005 the Arbitrator issued written reasons and a ‘Certificate of Determination’, which recorded her decision in favour of Mr Atkinson, awarding him weekly benefits and medical expenses as claimed.

The Insurer lodged this appeal within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). I am satisfied that the amount of compensation at issue in the appeal is at least $5,000 and 20% of the amount awarded in the decision appealed against. Leave to appeal is granted.

The Insurer has requested the matter be determined on appeal by way of an oral hearing. Mr Atkinson also requested an oral hearing. I have before me written submissions by both parties, all of the evidence that was before the Arbitrator and a transcript of the arbitration. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review…

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.

Continue reading NSW Department of Community Services v Atkinson

Details

AGLC: NSW Department of Community Services v Atkinson [2005] NSW WCC PD 99
Case: [2005] NSWWCCPD 99
Decision Date: 26 August 2005

CaseChat Overview and Summary

The Workers Compensation Commission heard an appeal by the NSW Department of Community Services (DOCS) against a decision of an Arbitrator who had awarded compensation to Stephen John Atkinson, a former Casework Manager at DOCS. Atkinson claimed to have suffered a psychological injury arising out of his employment in October 2003. The Insurer, GIO Workers Compensation, denied liability for the injury on the basis that Atkinson's employment was not a 'substantial contributing factor' to his psychological condition. Atkinson represented himself while DOCS was represented by Hunt & Hunt Lawyers. The Arbitrator had awarded Atkinson weekly benefits and medical expenses as claimed, and DOCS appealed the decision on the basis that the Arbitrator had erred in finding that Atkinson's employment was a 'substantial contributing factor' to his psychological condition.

The court considered whether the Arbitrator had erred in finding that Atkinson's employment was a 'substantial contributing factor' to his psychological condition. The court found that the Arbitrator had not erred in her consideration of the evidence and her findings in relation to whether Atkinson's employment was a 'substantial contributing factor' to his psychological injury. The Arbitrator had considered all the evidence before her and relevant cases, and had found that Atkinson's employment was a substantial contributing factor to his injury in the sense that it was 'more than minimal, large or great'. The Arbitrator had also considered the factors in section 9A of the 1987 Act and had found that Atkinson's employment was a substantial contributing factor to his psychological condition.

The court found that the Arbitrator had not erred in her interpretation of Dr Whish-Wilson's evidence, and that she was entitled to find that his reports supported Atkinson's claim. The Arbitrator had also not erred in her consideration of Dr Cadzow's evidence, and had found that his view was consistent with Dr Whish-Wilson's. The Arbitrator had also considered the evidence of Dr Akkerman and rejected his reports as to Atkinson's alcohol consumption and his diagnosis of 'Alcohol Abuse'. The Arbitrator had found that his diagnosis did not account for Atkinson's psychological condition and had preferred the evidence of Dr Whish-Wilson and Dr Cadzow.

The court found that the Arbitrator's written 'Statement of Reasons' demonstrated a careful and thorough appraisal of the evidence that was before her. She had briefly summarised the lay and medical evidence and the parties' submissions, had correctly identified the issues that were in dispute and plainly expressed her findings, and had identified and applied the relevant law. The Arbitrator had clearly met her statutory duty to give reasons.

The court confirmed the decision of the Arbitrator and ordered that DOCS pay the costs of the appeal.

Orders