State of NSW v Simms

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of NSW v Simms [2015] NSWWCCPD 62
APPELLANT:	State of NSW (wrongly sued as Fire & Rescue NSW)
RESPONDENT:	David Alan Simms
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-6841/14
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	17 April 2015
DATE OF APPEAL HEARINGS:	15 September 2015 and 21 September 2015
DATE OF APPEAL DECISION:	16 October 2015
SUBJECT MATTER OF DECISION:	Application to extend time to appeal, Pt 16 r 16.2 of the Workers Compensation Commission Rules 2011; whether delay in obtaining transcript of extempore decision constitutes exceptional circumstances; causation of injury; reasonableness of action taken by the employer with respect to discipline, s 11A(1) of the Workers Compensation Act 1987; costs where appeal only succeeds on a ground not initially pleaded
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Baran, instructed by Moray & Agnew
Respondent:	Mr P Stockley, instructed by Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1.     The appellant employer’s name is amended to State of NSW. 2.       Time to appeal the Arbitrator’s determination of 17 April 2015 is extended until 24 June 2015. 3.     The Arbitrator’s Certificate of Determination dated 17 April 2015 is revoked. 4.     The matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision. For the avoidance of doubt, the re-determination does not extend to whether the applicant worker suffered a psychological injury in the nature of a chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder, to which his employment was a substantial contributing factor. 5.     The appellant employer is to pay the respondent worker’s costs of the appeal. 6.     The costs of the first arbitration shall follow the outcome of the second arbitration.

INTRODUCTION

1. The worker was employed by the appellant as a breathing apparatus instructor. He was required to travel around New South Wales providing training to firefighters, using a purpose built semi-trailer.

2. The worker claimed that he suffered a psychological injury as a result of allegations by his employer that he made fraudulent claims for unsubstantiated work travelling expenses. He also alleged the condition was aggravated by the manner in which those allegations were pursued.

3. The appellant alleged that the worker did not suffer a work related injury. It alleged the worker suffered from a bipolar condition which was constitutional in origin and was unrelated to his employment. The Arbitrator rejected that argument.

4. The Arbitrator also rejected the appellant’s alternative argument, namely that if the worker was injured as alleged, that the injury was caused by reasonable action taken with respect to discipline under s 11A of the Workers Compensation Act 1987 (the 1987 Act).

5. This appeal concerns the Arbitrator’s findings on whether the worker suffered a work related injury and his findings with respect to the s 11A defence.

FACTUAL BACKGROUND

1. Mr David Simms, the respondent worker, was employed by the appellant,…