Prescott v State of New South Wales (South Western Sydney Local Health District)
[2023] NSWPICPD 33
•21 June 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Prescott v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 33 |
APPELLANT: | Linda Prescott |
RESPONDENT: | State of New South Wales (South Western Sydney Local Health District) |
INSURER: | Employers Mutual Limited – TMF |
FILE NUMBER: | A1-W1066/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 21 June 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 6 July 2022 is revoked. 2. The proceedings, including the proposed consent orders, are remitted to the Division Head of the Workers Compensation Division of the Commission for the purpose of giving effect to the proposed consent orders. |
CATCHWORDS: | WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – requirement to show error in order revoke a Certificate of Determination |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr H Halligan, counsel | |
| BPC Lawyers | |
| Respondent: | |
| Mr S McMahon, counsel | |
| HWL Ebsworth Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms R Homan |
DATE OF Member’s DECISION: | 6 July 2022 |
INTRODUCTION AND BACKGROUND
Ms Linda Prescott (the appellant) made a claim for weekly compensation, medical expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychological injury. The injury was said to have occurred as a result of numerous events in the course of her employment over the period from 1 January 1993 to 8 March 2012. The State of New South Wales (South Western Sydney Local Health District) (the respondent) denied liability for the alleged injuries, disputing that the appellant suffered an injury within the meaning of s 4 and s 11A(3) the 1987 Act, and disputing that the appellant’s employment was a substantial contributing factor to any such injury pursuant to s 9A of the 1987 Act.
The dispute proceeded to arbitration before a Member of the Personal Injury Commission, who issued a Certificate of Determination on 6 July 2022. She determined that she was not satisfied that the appellant’s employment was the main contributing factor to the injury and thus she was not satisfied that the appellant suffered an injury pursuant to s 4(b)(i) of the 1987 Act.
The appellant lodged an appeal from the Member’s decision citing five grounds of appeal upon which she relied in order to establish error on the part of the Member.
After the appeal was lodged, but before the appeal was allocated to a Presidential member, the respondent lodged draft consent orders signed by both parties reflecting an agreed resolution of the dispute. The parties sought the following relevant orders to be made by the Commission:
(a) the appeal to be allowed;
(b) the respondent to pay the appellant lump sum compensation in respect of 15% whole person impairment for psychological injury resulting from numerous stressors, with a deemed date of injury of 8 March 2012, and
(c) the application before the Commission to be otherwise discontinued.
Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 provides that an appeal from a decision of a non-presidential member is limited to a determination of whether the decision appealed against was or was not affected by error, and to the correction of such error. In order to allow the appeal and revoke the Certificate of Determination issued by the Member, I must be satisfied therefore that an error has occurred.
The first ground of appeal asserted by the appellant was that the Member erred in law by applying the test of the employment being the “main contributing factor” to the injury in accordance with s 4(b) of the 1987 Act, rather than “a substantial contributing factor” as required by s 9A of the 1987 Act.
The appellant submits that the deemed date of the appellant’s injury was 8 March 2012. The appellant submits that s 4(b) of the 1987 Act was amended from 19 June 2012 to include the requirement that the injured worker’s employment was the main contributing factor to a disease injury (s 4(b)(i)) or to the aggravation of a disease (s 4(b)(ii)). The appellant says that, prior to that amendment, the employment was only required to be “a contributing factor” to either “disease injury.” The appellant asserts that the Member applied the wrong test in making her determination.
The respondent asserts that the appellant did not contend that the employment caused a psychological condition pursuant to s 4(b)(i) of the 1987 Act or allege that the appellant suffered an “injury simpliciter” on 8 March 2012 or an aggravation of a disease within the meaning of s 4(b)(ii) of the 1987 Act.
The Member identified the dispute to be determined was whether the appellant suffered a psychological injury in accordance with s 4(b)(i) of the 1987 Act as a result of numerous workplace stressors with a deemed date of injury of 8 March 2012.[1]
[1] Transcript of proceedings (T), Prescott v State of NSW (South Western Sydney Local Health District) [2022] NSWPIC 359, T 2.5–10.
The deemed date of injury as pleaded in the Application to Resolve a Dispute was 8 March 2012, and the injury was pleaded as a disease injury within the meaning of s 4(b)(i) of the 1987 Act. It is clear that this was the injury the subject of the dispute between the parties.
As Roche DP observed in AP v NSW Police Force,[2] (citations of cases omitted):
“Where the injury is a disease which is of such a nature as to be contracted by a gradual process, the injury is deemed to have happened at the time of the worker’s death or incapacity (s 15(1)(a)(i)). The incapacity referred to is the ‘incapacity for which compensation is claimed’ (GIO Workers Compensation (NSW) Ltd v GIO General Ltd; P & O Berkeley Challenge Pty Ltd v Alfonzo).
The incapacity for which the appellant first claimed compensation started on 22 September 2011 when Dr Ruff issued her initial WorkCover certificate, certifying the appellant unfit from that date, and that is the deemed date of injury.”[3]
[2] [2013] NSWWCCPD 11 (AP).
[3] AP, [318]–[319].
In the present matter, on 10 May 2012, the appellant lodged a notice of psychological injury with a date of injury as 8 March 2012 and indicated that she ceased work on 16 April 2012.[4] On 5 July 2012, the respondent corresponded with the Community Emergency Mental Health Team, advising that the respondent gave approval for the appellant to undergo admission to a private hospital for assessment and treatment in relation to her workers compensation claim.[5]
[4] Application to Resolve a Dispute, p 24.
[5] Reply to Application to Resolve a Dispute, p 68.
Thus, the incapacity suffered by the appellant for which she claimed compensation manifested no later than 16 April 2012, when she ceased work. The appellant’s date of injury therefore pre-dated the amendments to s 4(b) of the 1987 Act. The Member erred in giving consideration to and making a determination as to whether the appellant’s employment was the main contributing factor to her injury. It was unfortunate that the Member was not assisted by any submissions from either party as to the proper test to be applied and was certainly not assisted by the voluminous nature of the evidentiary material placed before her.
The Member’s determination was affected by error of law and is revoked. The remaining orders sought by the parties are matters more appropriately to be dealt with by a non-presidential member.
DECISION
The Member’s Certificate of Determination dated 6 July 2022 is revoked.
The proceedings, including the proposed consent orders, are remitted to the Division Head of the Workers Compensation Division of the Commission for the purpose of giving effect to the proposed consent orders.
Elizabeth Wood
Deputy President
21 June 2023
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