NSW Police v Gilmore - [2007] NSWWCCPD 178

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW Police v Gilmore [2007] NSWWCCPD 178
APPELLANT:  NSW Police
RESPONDENT:  Andrew David Gilmore
INSURER:Allianz Australia Insurance Ltd
FILE NUMBER:  WCC444-07
DATE OF ARBITRATOR’S DECISION:          15 March 2007
DATE OF APPEAL DECISION:  14 August 2007
SUBJECT MATTER OF DECISION: Leave to appeal; section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998; reconsideration; section 350(3) of the 1998 Act.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      DLA Phillips Fox, Lawyers
Respondent:   Whitelaw McDonald, Solicitors

ORDERS MADE ON APPEAL: Leave to appeal is refused. The Appellant’s application for reconsideration of the decision of the Arbitrator dated 15 March 2007 is also refused.
The Appellant is to pay the Respondent, Mr Gilmore’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 1 May 2007, the NSW Police (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 15 March 2007. The Respondent to the appeal is Andrew Gilmore, who has not lodged a ‘Notice of Opposition’ to the appeal. The Appellant’s workers compensation insurer is Allianz Australia Insurance Ltd.

Andrew Gilmore was born on 1 December 1965 and is aged 41. He joined the NSW Police as a mature entrant in March 1999. On 29 June 2006, Mr Gilmore’s solicitors lodged a claim for weekly compensation in respect of the period 19 October 2005 to 2 November 2005. During this time, he claimed to be suffering an adjustment disorder arising out of his employment in the period to 28 August 2005 when he notified the Appellant of his injury. On 30 January 2007, the Commission registered Mr Gilmore’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation. On 20 February 2007, the Appellant lodged a ‘Reply’.

On 6 March 2007, the Arbitrator conducted a teleconference with the parties. On 13 March 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing, at the conclusion of which he gave an oral decision in the terms set out below.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 15 March 2007, records the Arbitrator’s orders as follows:

“1. That the Respondent make weekly payments to the Applicant under s 36 of the Workers Compensation Act 1987 for the period 19 October 2005 to 2 November 2005 at the rate of $1,029.48.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”

In the Statement of Reasons for his decision given orally at the conclusion of the hearing, the Arbitrator noted that there was no dispute that in the period September to November 2005, Mr Gilmore was suffering from the psychiatric injury of adjustment disorder (transcript p 23). However, what was in dispute was the cause of that disorder. The Arbitrator relied on the report of Dr Ian Fowler, Psychiatrist, dated 18 April 2006. (Dr Fowler diagnosed an adjustment disorder, and…

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.

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Details

Case: [2007] NSWWCCPD 178
Decision Date: 14 August 2007

CaseChat Overview and Summary

In this case, the NSW Police sought leave to appeal against a decision of an arbitrator, which ordered them to pay compensation to Andrew Gilmore for an adjustment disorder arising out of his employment. The Arbitrator concluded that Mr Gilmore’s disorder was caused by stressors experienced during his employment, rather than the disciplinary process itself. The Appellant’s grounds for appeal were that the Arbitrator erred in fact and law by stating that Mr Gilmore developed an adjustment disorder as a result of previous stressors and failed to give reasons as to why the evidence of Mr Matthews was not to be relied upon, and that the Arbitrator made an error of law by allowing Mr Gilmore to plead his claim as a ‘disease’ despite this not having been pleaded previously.

The Court considered the Appellant’s arguments and found that the threshold for leave to appeal had not been satisfied, as the amount of compensation at issue was less than $5,000. The Court also found that the Appellant had not demonstrated unusual circumstances justifying a reconsideration of the Arbitrator’s decision under section 350(3) of the 1998 Act. The Court concluded that the Appellant had failed to establish unusual circumstances warranting a reconsideration of the Arbitrator’s decision. Leave to appeal was therefore refused, and the Appellant’s application for reconsideration of the Arbitrator’s decision was also refused. The Appellant was ordered to pay the Respondent’s costs of the appeal.

This decision highlights the importance of complying with the relevant rules and procedures when lodging an appeal. The Court found that the Appellant had substantially complied with the rules, but that this was not sufficient to grant leave to appeal in this case. The Court also emphasised the wide discretionary power available to the Commission to reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission. However, this power should only be used where there are unusual circumstances such that the public interest in litigation not proceeding indefinitely is overridden by the need to do justice between the parties.

Orders