Sapina v Coles Myer Limited

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

STATUS: Remitted on Appeal: This decision has been the subject of a remitter from the Court of Appeal: see Sapina v Coles Myer Limited [2009] NSWCA 71

CITATION:

Sapina v Coles Myer Limited [2008] NSWWCCPD 8

APPELLANT:

Sylvia Sapina

RESPONDENT:

Coles Myer Limited

INSURER:

Self insured

FILE NUMBER:

WCC4331-07

DATE OF ARBITRATOR’S DECISION:

18 September 2007

DATE OF APPEAL DECISION:

18 January 2008

SUBJECT MATTER OF DECISION:

Section 11A of the Workers Compensation Act 1987; causation of psychological injury; finding of reasonable action not based on the evidence; irrelevant consideration; basis for amount of weekly payments.

PRESIDENTIAL MEMBER:

Acting President Gary Byron

HEARING:

Determined ‘on the papers’

REPRESENTATION:

Appellant: Walker Legal

Respondent: Lander & Rogers

ORDERS MADE ON APPEAL:

The decision of the Arbitrator dated 18 September 2007 is revoked, and the following order is made in its place:.

1. Award for the Respondent Employer.

2. No order as to costs.

No order made as to the costs of this Appeal.

BACKGROUND

1. On 16 October 2007 Ms Sylvia Sapina, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 September 2007.

1. The Respondent to the Appeal is Coles Myer Limited.

1. Coles Myer Limited is and was at all material times, self-insured.

1. Coles Myer employed Ms Sapina in July 1997 as a shop assistant in the delicatessen of its supermarket at Merrylands.  Two and a half years later, Ms Sapina requested a transfer to the Epping store where she was appointed to the position of Delicatessen Manager, supervising eight other people.  Some time later her marriage broke up and she sought a further transfer to the Cambridge Gardens store so that she could be near her sons.  Some difficulties occurred at work at Cambridge Gardens, and she then requested a further transfer to the St Marys store.

1. Following a conflict at the Cambridge Gardens store, Ms Sapina submitted a complaint to the Human Resources section of Coles Myer, alleging that the Store Manager had discriminated against her and bullied her.  She transferred to the position of Delicatessen Manager at the St Marys store in April 2004.  She claimed within two weeks that the Store Manager’s behaviour towards her made her feel belittled and uncomfortable.  Subsequently, she submitted a claim for payment of workers compensation, which was rejected.

1. Ms Sapina took nine weeks off work, and upon her return to duty in June 2004 she was informed that the Store Manager had transferred to another location.  She states that everything was fine until September 2006 when a new Store Manager and a Store Support Manager were appointed.  Ms Sapina claims that she did not get along with the new Store Support Manager from the outset, and that she was rude to her.

1. In mid September Ms Sapina suffered a heart scare at a time when she thought that the Store Manager…