Sydney South West Area Health Service v Markovski
[2009] NSWWCCPD 8
•28 January 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Sydney South West Area Health Service v Markovski [2009] NSWWCCPD 8 | |||||
| APPELLANT: | Sydney South West Area Health Service | |||||
| RESPONDENT: | Marko Markovski | |||||
| INSURER: | Employers Mutual Limited NSW Treasury Managed Fund No. 2 | |||||
| FILE NUMBER: | A1-5004-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 8 October 2008 | |||||
| DATE OF APPEAL DECISION: | 28 January 2009 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; sections 4, 9A and 11A of the Workers Compensation Act 1987; whether the claimed injury was wholly or predominantly caused by the reasonable actions of the employer. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | ||||
| Respondent: | Paul A Curtis & Co | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraph one of the decision of the Arbitrator dated 8 October 2008 is revoked and the following decision made in its place: “1. There is an award for the Applicant in respect of the claim for weekly compensation. The Respondent is to pay the Applicant as follows: 1) Pursuant to section 36 of the Workers Compensation Act 1987 from 24/7/2007 to 23/11/2007 at the rate of $557.27 per week; 2) Pursuant to section 38 of the 1987 Act from 24/11/2007 to 14/1/2008 at the rate of $557.27 per week.” 2. Paragraphs two, three and four are confirmed. | |||||
| 3. The Appellant is to pay the costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 5 November 2008 Sydney South West Area Health Service-Royal Prince Alfred Hospital (‘the Appellant / RPAH’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 8 October 2008.
The Respondent to the Appeal is Marko Markovski (‘the Respondent / Mr Markovski’).
Mr Markovski commenced employment with RPAH in 1997 as a ward assistant. He claimed that up until early 2007 his duties were “…exclusively ‘courier’ in nature within the hospital confines.”
In late 2006 Mr Markovski took long service leave. When he resumed work in January 2007 his duties had changed. He was assigned one day of ward duties in addition to his courier tasks. His duties on ward 5E included bed-making, cleaning and linen duties.
Mr Markovski claimed that, having never previously performed ward duties, he failed to
receive any direction, training or guidance. As a result of his increased workload and lack of
training he became stressed.
On 15 January 2007 Mr Markovski wrote to his union representative outlining his concerns about his new duties in ward 5E.
By early July 2007, a number of written complaints had been made concerning Mr
Markovski’s work performance in ward 5E. On 23 July 2007 he attended a meeting with a number of representatives from RPAH together with his union representative.
Following that meeting, Mr Markovski claimed that he felt extremely stressed and depressed. He consulted his general practitioner, Dr Ristevski, the next day. He was diagnosed with “anxiety / major depressive disorder” and put off work for a number of months before resuming his pre-injury duties with RPAH on 15 January 2008.
He made a claim for weekly benefits and medical expenses on the insurer of RPAH,
Employers Mutual Limited NSW Treasury Managed Fund No 2 (‘EML’). On 22 August
2007, EML wrote to Mr Markovski advising that:
“…the psychological injury sustained by you on 24/7/2007 will be declined as from 22/8/2007” on the grounds that, inter alia, “the psychological injury was caused by the Employer’s reasonable actions with respect to performance management.”
On 1 July 2008, Mr Markovski filed an ‘Application to Resolve a Dispute’ (‘the
Application’) in the Commission seeking weekly benefits from 24 July 2007 to 14 January
2008 together with medical expenses pursuant to the provisions of the Workers
Compensation Act 1987 (‘the 1987 Act’).
The parties attended a conciliation/ arbitration hearing on 12 August 2008. On 8 October
2008, a ‘Certificate of Determination’ was issued with an accompanying ‘Statement of
Reasons’ (‘Reasons’). The determination of the Arbitrator was as follows:
“1.There is an award for the Applicant in respect of the claim for weekly compensation. The Respondent is to pay the Applicant as follows:
1) pursuant to s36 of the 1987 Act, from 24/7/2007 at the rate of $713.40 per week;
2) pursuant to s38 of the 1987 Act, from 24/11/2007 to 14/1/2008 at the rate of $713.40 per week.
2. There is an award for the Applicant in respect of the claim for medical expenses. The Respondent is to pay the Applicant’s reasonable medical expenses pursuant to s60 of the 1987 Act, to be paid on production of accounts and receipts and notice of HIC charge.
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.
4. I certify that this was a complex matter and determine that pursuant to Clause 4 of Schedule 6 and Item 4 of Table 4 of the Workers Compensation Regulation 2003 that in respect of the Applicant’s costs that a percentage increase of 20% be applied.”
It is from this decision that RPAH seeks leave to appeal.
I note that on 6 November 2008, RPAH filed an ‘Application for Reconsideration’ in the
Commission in relation to the Arbitrator’s findings as to the rate of the weekly payment
award. On 27 November 2008, Mr Markovski wrote to the Commission conceding that
“the appropriate rate.” should be $557.27 per week. Given that the matter was already
subject of appeal, the Arbitrator declined to reconsider the matter. As requested by the
parties, I will take this ‘concession’ into consideration in the appeal.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the
Application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the
1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having
regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
RPAH has cited seven grounds of appeal. These may be summarised by the following four grounds:
a. whether the Arbitrator erred in finding that Mr Markovski suffered an injury
within the meaning of section 4 of the 1987 Act;b. whether the Arbitrator erred in finding that employment was a substantial
contributing factor to any injury as required by section 9A of the 1987 Act;c. whether the Arbitrator erred in determining that the employer’s response in
respect of the transfer and discipline and/or performance appraisal of Mr
Markovski was not reasonable (section 11A); andd. whether the Arbitrator erred in determining that the matter was complex and
certifying an uplift in costs.
THE REVIEW PROCESS
The nature of the review process has been succinctly summarised by Deputy President Roche in a number of decisions, and recently in Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 where he said as follows [16]-[18]:
“16.The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:
‘A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.’
17. McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
18.The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
‘28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.’”
These principles must be borne in mind in determining the appeal.
THE EVIDENCE
The Worker’s evidence
Mr Markovski states that the ward duties at the mothers and babies unit at 5E involved
numerous tasks which he had never previously performed. He claims that he received no
training until late February 2008 when he had resumed duties with RPAH.
He also claimed that having to continue with ‘”courier” duties as well, which included
“pathology rounds” taking blood from the hospital to the blood bank, caused him to become
extremely stressed and confused.
He wrote to his union representative outlining his concerns about his new duties in ward 5E
on 15 January 2007.
Mr Markovski claimed that he felt that he was “…constantly being watched over.” If he left
the ward, he was paged to return and make an urgent bed. He was slow at this task, not
being used to it, but did the best he could.
A formal complaint was issued by the midwife in 5E about his work performance on 6 June
2007. As requested by his supervisor, Mr Grassi, he provided a written response addressed
to the human resources department at RPAH, but not to Mr Grassi on the advice of his union.
Two further complaints were made on 20 June 2007 and 4 July 2007.
A meeting was arranged with Mr Grassi and Ms Edwards, nurse manager, on 23 July 2007.
Also in attendance was Ms Borg, union representative. There was some dispute as to Mr
Markovski’s failure to provide his response to the claims to Mr Grassi, but the response was
eventually accepted by all present.
Mr Markovski asked the nature of his job description and was advised to go to the human
resources department and get a copy of his file. This he did, but claims that there was “…no
signed copy of a job description…” on file.
Mr Markovski claimed that he became extremely upset and “stressed” following that
meeting, since he had not had an opportunity to discuss the difficulties he was having in the
new position, nor had the nature and extent of his duties been clarified.
He consulted his general practitioner, Dr Ristevski, the next day and was diagnosed with
“anxiety / major depressive disorder” and commenced a course of medication. He saw her
on a weekly basis throughout July and August 2007, and continued to see her regularly over the next six months and thereafter.
Dr Ristevski referred him to Dr Hugh Morgan, consultant psychiatrist, who first saw him on
23 August 2007. Dr Morgan described his presentation as “…profoundly depressed with
psychomotor retardation and agitation.” He noted that “…he had been under a lot of
pressure at work over the last 6 months or so…” Dr Morgan diagnosed “Major Depressive
Disorder, Severe, with Melancholic Features.” He also saw him regularly over the ensuing
months.
In late November 2007, Mr Markovski was certified fit for suitable duties six hours per day,
three days per week. He attended RPAH but was told to go home “…as it was their policy to not allow staff to work on suitable duties.”
He was certified fit for pre-injury duties on 15 January 2008.
On 29 May 2008 Mr Markovski consulted Dr Canaris, consultant psychiatrist, at the
request of his solicitors. Dr Canaris confirmed the diagnosis of ‘major depressive illness”noting that Mr Markovski was now “…in partial remission following treatment…” He noted:
“[His condition] appears to have come on in the context of workplace stresses- from his account, these appear to comprise lack of clarity as to his duties with perceived conflict between his role in making beds and associated roles as courier cum ward assistant.
…the problem as far as I can ascertain was not any objection on his part to making beds but rather difficulties in meeting the expectations of the nursing staff in an extremely busy ward. This appears to have given rise to complaints creating an adversarial cum disciplinary approach towards these problems.
It is perhaps worthwhile remembering that hospitals are highly hierarchical organisations and that ward assistants (particularly if they are only an occasional
presence on the ward) are very much on the bottom of the pecking order. Specialist units such as maternity wards or intensive care units, which deal with a high workload have to respond to rapidly changing situations in relation to patients under their care, tend to be especially demanding on lower echelon staff.”
The Employer’s evidence
RPAH relied principally on a detailed report prepared by ‘Claims Intervention’ staff person,
Emily Higgins, a clinical psychologist, on 9 August 2007. She essentially confirmed the
sequence of events related by Mr Markovski, noting as follows:
“Marko Markovski returned from long service leave in December 2006 and found himself placed on Ward 5E on his Wednesday night shift. Due to the high turnover of beds on this ward the nurses on this ward rely heavily on the Ward Assistants to carry out tasks such as bed making, cleaning pan rooms and sorting linen bags. Prior to December 2006 [he] performed a mainly Courier orientated role.
[He] found it difficult to accept and adjust to his placement on Ward 5E and carrying out duties such as bed making, cleaning pan rooms and linen bags.”
Thereafter, Ms Higgins noted the various complaints and the subsequent meeting on 23 July
2007.
Ms Higgins confirmed the diagnosis noting that Mr Markovski “…met the criteria [of]
Adjustment Disorder With Depressed Mood…” with its onset on or about 23 July 2007.
She accepted that this rendered him unfit for work for a period but concluded that he was fit
for work from 6 August 2007.
Ms Higgins concluded that non-work factors played no part in the development of Mr
Markovski’s condition, but identified two substantial contributing factors as:
“Requirement to attend meeting on 23 July 2007 to respond to complaints made in regard to his performance of duties and conduct;
Difficulty in accepting changes to the Ward Assistant roster which requires all Ward Assistants to be rostered for some of their shifts to ward E5. Mr Markovski is rostered to E5 one shift per week and does not accept that he is required to perform tasks in this ward which he may not have to perform in other wards. Mr Markovski also reports that he has difficulty in understanding who to report to when he is rostered on E5.”
Ms Higgins had interviewed Mr Markovski and a number of other staff members. There is
no doubt that complaints had been made as to Mr Markovski’s work performance. For
example, the complaint made on 6 June 2007, noted that he only made two or three beds per
shift when seven to eleven was considered appropriate. Mr Grassi claimed that:
“Mr Markovski was put on a work plan in March 2007 in regard to …cleaning beds. [He] agreed that he would let the person in charge know when he had finished his work…Another Nurse Manager…carried out half a shift with [him] to determine whether what we were asking of him was reasonable…she felt that his tasks were reasonable…he does blood runs for the Biochemistry Unit, this unit has been relocated. Other tasks remain unchanged. The tasks are clearly set out for Ward Assistants not just Marko Markovski…He does not respond well to direction…”
Nonetheless, Ms Higgins concluded as follows:
“[Mr Grassi] is reviewing the requirements in Ward 5E and seeking to clarify the role/responsibilities particularly as they relate to this ward. It would be suitable that Marko Markovski discontinue his shift on this ward while this review is occurring. Marko Markovski reports difficulty and confusion in being responsible to report both to the Nurse Manager…and the Midwife In Charge at Ward 5E. This review will also confirm the reporting lines for this shift and ensure they are made clear both to the Ward and [Mr] Markovski.”
THE SUBMISSIONS AND FINDINGS
The ‘Injury’ Issue
RPAH submits that Mr Markovski did not suffer an injury within the meaning of section 4
of the 1987 Act.
In Kirby v Trustees of the Society of St Vincent de Paul (unreported 11 April 1997)
Neilson J stated at page 4:
“To succeed in this court, the applicant must prove that the conduct complained of constituted ‘injury’ with the meaning of the Act. Where, as here, a psychiatric injury is alleged the applicant must prove either:
(i) That the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse: Yates v South Kikby Collieries Ltd [1910] 2 KB 538; Austin v The Director General of Education (1994) 10 NSWCCR 373; Thazine-Aye v the Workcover Authority of NSW (1995) 12 NSWCCR 304; The Zinc Corporation v Scarce (1995) 12 NSWCCR 566
or(ii) The aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition; Austin’s case.
Frustration and emotional upset do not constitute injury; Thazine-Aye’s case; nor, semble, where a mere “anxiety state”; The Zinc Corporation case. A “straight litigation neurosis” is not compensable; Karathanos v Industrial Welding [1973] WCR 79. A misperception of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable; Townsend v The Commissioner of Police (McGrath CJ 17.02.92, unreported).”
A convenient summary of the relevant principles as to what constitutes a psychological
injury are set out in Department of Corrective Services v Bowditch [2007] NSWWCCPD
244 at [53] – [59]. I do not intend to set out those principles in detail: in short, if a worker
exhibits the symptoms of anxiety or depression, then it is axiomatic that he has suffered an
injury. As Burke CCJ said in Bhattia v State Rail Authority of NSW [1997] NSWCCR 25:
“Has the human organism that is the worker become dysfunctional?’
If so, then an injury has occurred.”
In the present case, the diagnosis is unanimous. Mr Markovski’s symptoms on presentation to Dr Ristevski and particularly Dr Morgan support that diagnosis. Ms Higgins came to the same conclusion.
The submission by RPAH that “for the alleged injury to have been wholly or predominantly caused by events prior to the meeting of 23 July 2007, there should have been some psychological (and not merely emotional) symptoms demonstrated prior to 23 July 2007”, seems to focus on the timing of the onset of symptoms and not the cause. There was clear evidence from Mr Markovski as to the difficulties he was experiencing in Ward 5E shortly after he commenced his duties there. True, he did not consult his doctor for some time, but he clearly described his symptoms from an early stage. The meeting appears to have been the catalyst in terms of the issue of incapacity. A finding of ‘injury’ however is not necessarily defined according to the onset of symptoms. As Mr Markovski submits:
“It is not incumbent upon him to show that his injury was wholly or predominantly caused by a particular event. Clearly the notion of a whole or predominant cause of injury is an onerous one and one which an employer must discharge if it wishes to successfully rely upon the section 11A defence. It is simply not the test to be applied to the question of the burden to be discharged by the applicant in respect of injury itself.”
Accordingly, I am not persuaded that RPAH has demonstrated any error by the Arbitrator in his finding on this issue.
The Section 9A Issue
RPAH further submits that, if Mr Markovski did suffer an injury, then his employment was not a substantial contributing factor as is required by section 9A of the 1987 Act.
This is a rather bold submission given the positive statement by Ms Higgins to this effect. In the absence of any further submissions, I am a little at a loss to understand the grounds upon which this allegation is made.
The Arbitrator dealt with this issue at [18] to [24] of his Reasons. As Mr Markovski points out, the Arbitrator “…went further than was required of him in giving reasons…” given all the evidence (from both parties) before him. He noted that, despite recording the onset of the injury at “on or about 23 July 2007”, Ms Higgins did not identify the meeting as the cause of the injury, and the Arbitrator concluded that it was not. The principal cause found by the Arbitrator was Mr Markovski’s “…ongoing difficulties and confusion in performing the role of wardsman which required him to be rostered for some of his shift to Ward 5E.” Reference is made to the observations of Dr Canaris on this point referred to in paragraph 35 above.
The Arbitrator noted at [22]:
“It is clear from the report of Ms Higgins that the meeting of 23 July 2007 concluded with no clarification of the critical issue of reporting lines and responsibilities. Ms Higgins reports (page 16) that the Applicant stated:
‘In NARMU I don’t know who to listen to. On Wednesday is the boss NARMU or the other person in charge on 5E. I don’t know if I follow my list of duties.’”
The Arbitrator further referred to the report of Ms Higgins at [23] quoting from page 25 of the report as follows:
“The employer reports that the complaints against Mr Markovski were addressed as per the employer’s grievance policy. The employer has described their adherence to this policy. Mr Markovski’s manager sought advice from the Human Resources Manager in implementing this process. Mr Markovski believes that although he was able to respond to the complaints against him, the issues were not resolved to his satisfaction. He believes there was no outcome to the meeting…
The Human Resources Manager has asked that a review of reporting lines and tasks to be completed by the Ward Assistants when on E5 is conducted…”
The Arbitrator concluded at [24]:
“I conclude from this material that at the meeting the Applicant was cautioned about his behaviour but it was deemed that the ‘status quo’ was to prevail. I further interpolate from the report that the Human Resources Manager…who was not at the meeting but who was aware of its organisation, has separately (and sensibly) initiated a review of the very issue of which the Applicant complained, ‘who does he report to if he has a problem?’ As at the date of the report of Emily Higgins, that issue had not been resolved.”
While many of the Arbitrator’s remarks do not specifically address the section 9A issue, I am satisfied that the opinion of Dr Canaris and Ms Higgins amply provided him with grounds to conclude that the employment was a substantial contributing factor to the injury.
The Section 11A Issue
Section 11A(1) of the 1987 Act provides as follows:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
RPAH makes a number of submissions on this issue. In addition to its claim that the Arbitrator erred on the issue of the reasonableness of its ‘transfer’ of Mr Markovski, RPAH claims that Mr Markovski was well aware of his duties and responsibilities in Ward 5E. It refers to the report of Ms Higgins and to Mr Markovski’s letter to his union representative dated 15 January 2007. In short, RPAH submits that if Mr Markovski did suffer a psychological injury, it was as a result of reasonable action taken by it.
The Arbitrator dealt with this issue at [25] to [28] of his Reasons. As he pointed out, section 11A was the primary focus of the employer’s submissions. At [26] he stated:
“…I consider that the cause of the Applicant’s injury was neither wholly nor predominantly the result of the process of performance appraisal undertaken by the Respondent and therefore s.11A is not applicable to this dispute. Even if it was, in my view the Applicant’s psychological injury was the result of the manner of the performance of his duties when, after returning from long service leave, he [was] required to undertake work for different groups within the hospital without clarity of reporting lines or responsibilities and not ‘with respect to’ the meeting alone.”
The Arbitrator then set out at length extracts from the Court of Appeal decision in Manly Pacific International Hotel Pty ltd v Doyle (1999) 19 NSWCCR181. What is required is consideration of the process of transfer, demotion etc. rather than those acts per se.
The Arbitrator concluded at [28]:
“Finally, even if the answer to the question whether the Respondent’s actions were ‘with respect to…performance appraisal’ is answered in its favour, then the next question that must be considered is whether that action was ‘reasonable’. This is a question of fact involving an objective test, which must take into consideration all relevant factors including the rights of both employee and employer (Aristocrat Technologies Australia PtyLtd v Rashov [2005] NSWWCCPD 66, at paragraph 82). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation. But that onus rests with the employer. It is clear from the material that the process of reallocation of ward assistants to ward 5E that occurred whilst the Applicant was on long service leave was not properly explained to the Applicant or initiated. Even as at the date of the investigative report there was no clarity as to the reporting relationships with respect to the Applicant’s responsibilities. There was therefore insufficient evidence to determine this aspect of the claim in favour of the Respondent.”
It is true that in his letter to his union representative dated 15 January 2007, Mr Markovski stated:
“On…13th January 2007, I asked NARMU to provide me with the job description…but [have] not got one or some explanation about these changes until just today …that they gave me one copy. I have a few questions wanting to have a clear answer:
1. What are the tasks and responsibilities of being a Courier?
2. What are the tasks of being a Ward Assistant?
3. Am I a Courier, a Cleaner or a Ward Assistant?
I am quite confuse [sic] with my current role…I am hoping to clear this matter…”
In her report of 9 August 2007, Ms Higgins noted that in May 2006, Mr Markovski was issued with a copy of his position description and “the duties and responsibilities of his position had been clearly explained to him…” His position was Hospital (Ward) Assistant Grade 2. But there is no dispute that Mr Markovski was a Ward Assistant. He was aware of his duties prior to December 2006. The duties changed as at that date. As Ms Higgins noted, “The task of bed making (for example) is not done by the Ward Assistants on other wards but is a requirement …on 5E due to the high turnover…”
This material was relevant to the “transfer” of Mr Markovski, but as Mr Markovski pointed out, the Arbitrator made no finding that the injury was wholly or predominantly caused by action in respect of transfer, thus he was not required to consider whether such action was reasonable.
What clearly emerges from the totality of the evidence is that it was not the transfer to ward 5E per se that caused the injury, rather the process involved in this action. It does not seem to be disputed that, from the early stages, Mr Markovski was having considerable difficulties performing his various roles with no clear reporting lines or responsibilities. These issues were not resolved at the meeting on 23 July 2007. As Mr Markovski rightly submits:
“…as the Arbitrator accepted and both Dr Canaris and [Ms Higgins] appeared to agree, it was not action in respect of transfer but the nature of the post transfer work environment which caused [Mr Markovski] problems, in turn causing his psychological condition…Unless and until the Arbitrator had found that the …injury was wholly or predominantly caused by action in respect of transfer, it was not incumbent upon him to consider whether such action was reasonable or not.”
The evidence in my view clearly supported the Arbitrator’s conclusion that the defence allowed an employer under section 11A was not applicable to the circumstances of this particular case, such that this ground of appeal must fail.
The Costs Issue
Mr Markovski submits that this ground of appeal is “…incompetent as falling outside permissible grounds contained in section 352(8) of the 1998 Act.” I do not accept this argument – it was a consequential order relevant to the proceedings on foot. However, I do accept Mr Markovski’s submission that, if competent, “…it would be necessary for the appellant to demonstrate that his exercise of discretion had been vitiated by error sufficient to attract appellate intervention upon the principles set out in House v R (1936) 55 CLR 499.”
This issue was considered by Acting Deputy President Snell in Smith v Roads and Traffic
Authority of NSW (No.2) [2008] NSWWCCPD 141 where he said:
“A matter does not become more or less complex as a consequence of the time
proceedings are on foot. There are many reasons why some proceedings take
longer than others, not necessarily involving complexity. The volume of the documentary material is of only limited relevance. It is something that may indicate complexity depending on its contents…. It is necessary to have regard to the substance of the issues between the parties, rather than to the volume of documentary material generated.”The issue was the subject of submissions before the Arbitrator (Transcript pages 42-43).
The Arbitrator reserved his decision noting, “…there is a lot of material…to do justice
to this and to the parties I should sit and read it thoroughly…I think it would be best if my
decision was a reasoned one based carefully on the material before me…”
Having regard to the substance of the issues between the parties, although the claim was
for a closed period only, I am satisfied that the Arbitrator properly exercised his discretion
in awarding an uplift in costs.
This challenge to the Arbitrator’s determination is therefore unsuccessful.
CONCLUSION
The Arbitrator’s determination was consistent with the evidence and in line with a number of authorities to which he referred.
The decision is confirmed subject to an amendment as to the rate of weekly payments in line with the agreement of the parties referred to in paragraph 13 above.
DECISION
Paragraph one of the decision of the Arbitrator dated 8 October 2008 is revoked and the following decision made in its place:
“1. There is an award for the Applicant in respect of the claim for weekly
compensation. The Respondent is to pay the Applicant as follows:
(1) Pursuant to s 36 of the Workers Compensation Act 1987 Act, from 24/7/2007 to 23/11/2007 at the rate of $557.27 per week;
(2) Pursuant to s 38 of the 1987 Act, from 24/11/2007 to 14/1/2008 at the rate of $557.27 per week.”
Paragraphs two, three and four are confirmed.
COSTS
Given that the Appellants was unsuccessful on all grounds of appeal, save for the agreement as to the monetary amount of the appeal it is appropriate that the Appellant pay the costs of the appeal.
Deborah Moore
Acting Deputy President
28 January 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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