UPS Supply Chain Solutions Pty Limited v Kim - [2007] NSWWCCPD 214

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:UPS Supply Chain Solutions Pty Limited v Kim [2007] NSWWCCPD 214
APPELLANT: UPS Supply Chain Solutions Pty Limited

RESPONDENT: Sang Soon Rosa Kim

INSURER:QBE Workers Compensation (NSW) Limited.

FILE NUMBER:  WCC2158-07
DATE OF ARBITRATOR’S DECISION:          1 June 2007
DATE OF APPEAL DECISION:  23 October 2007
SUBJECT MATTER OF DECISION: Psychological injury; incapacity; weight of evidence; application of Sections 4, 9A and 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      McCulloch & Buggy
Respondent: Young & Muggleton.

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 1
June 2007 is confirmed.
2.The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 28 June 2007 UPS Supply Chain Solutions Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 1 June 2007.

The Respondent to the Appeal is Sang Soon Rosa Kim (‘the Respondent’).

The Respondent was born on 15 March 1952 in Korea. She came to Australia in 1982. She worked as a process worker at a shoe factory from 1985 to 1987 and then worked as a process worker at Estee Lauder for approximately 14 years until she was retrenched in March 2001.

She commenced employment with the Appellant as a Stock Administrator in April 2001. Her duties included picking, packing computer parts and driving a forklift. The Respondent stated that she was “… the only female employee”.

The Respondent claimed she commenced learning to use a forklift in about October 2005 and as a result of inadequate instructions, suffered anxiety. In an undated statement annexed to her ‘Application to Resolve a Dispute’ filed in the Commission on 28 March 2007, she documented other issues relating to difficulties with fellow employees (to which I will refer more fully below) as causing her to feel “… very harassed, intimidated, anxious and stressed…”.

These incidents, the Respondent claimed, caused her to begin “… to dread working …”.

The Respondent claimed that “in February/March 2006, I started really hating going to work …” and began suffering symptoms such as sleeplessness and sweating.

On the 27 April 2006 whilst travelling to work, the Respondent claimed that she suffered what has been described as a “panic attack”. Her symptoms included rapid heart beat, difficulties breathing, sweating and dizziness. She pulled the car over and made arrangements for a colleague to drive her to her general practitioner, Dr Kim. At a consultation on that date, Dr Kim prescribed Zoloft. The Respondent went home but due to continuing symptoms, went to Concord Hospital for further treatment.

She ceased work on 27 April 2006 and has not worked since.

The Respondent made a claim for compensation on the Appellant’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) on 23 May 2007. Liability was…

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.

Keep reading for free

Create a free CaseChat account to read UPS Supply Chain Solutions Pty Limited v Kim and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWWCCPD 214
Decision Date: 23 October 2007

CaseChat Overview and Summary

The appeal was brought by UPS Supply Chain Solutions Pty Limited (‘the Appellant’) against a decision of a Commission Arbitrator dated 1 June 2007, made in favour of Sang Soon Rosa Kim (‘the Respondent’) in proceedings under the Workers Compensation Act 1987 (NSW) (‘the 1987 Act’). The Arbitrator had found that the Respondent had suffered a psychological injury during the course of her employment with the Appellant and had been totally incapacitated for the period 4 July 2006 to 14 October 2006 and partially incapacitated from 15 October 2006 to date and continuing. The Arbitrator had made an award in her favour for weekly compensation and medical expenses. The Appellant appealed on four grounds. Firstly, that the Arbitrator erred in finding that the Respondent suffered a compensable injury during the course of her employment with the Appellant and finding that the Respondent’s employment with the Appellant was a substantial contributing factor to the Respondent’s condition. Secondly, that the Arbitrator erred in finding that the Respondent was incapacitated as alleged or at all. Further, the Arbitrator erred in his assessment of the Respondent’s entitlement to weekly compensation pursuant to section 40 of the 1987 Act. Thirdly, that the Arbitrator erred in allowing the Respondent to rely upon evidence which was not served in accordance with the Rules and which was highly prejudicial to the Appellant. Fourthly, that the Arbitrator failed to give adequate or any reasons for his decision. In the review process, the Acting Deputy President found that the Arbitrator’s findings were open to him on the totality of the evidence. The ‘late evidence’ relied upon by the Respondent was appropriately admitted and weighed by the Arbitrator and was not prejudicial to the Appellant. The Arbitrator’s reasons, when read as a whole, were adequate in the context of the Commission’s requirements. The decision of the Arbitrator dated 1 June 2007 was confirmed and the Appellant was to pay the costs of the appeal.

Orders