Wannell v Sydney South Western Area Health Service (Liverpool Community Health)
[2007] NSWWCCPD 45
•12 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wannell v Sydney South Western Area Health Service (Liverpool Community Health) [2007] NSWWCCPD 45
APPELLANT: Norma Wannell
RESPONDENT: Sydney South Western Area Health Service (Liverpool Community Health)
INSURER:GIO General Limited
FILE NUMBER: WCC14004-05
DATE OF ARBITRATOR’S DECISION: 28 November 2005
DATE OF APPEAL DECISION: 12 February 2007
SUBJECT MATTER OF DECISION: Sections 4, 9A, 11A of the Workers Compensation Act 1987 and section 350 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the Papers
REPRESENTATION: Appellant: McClellands lawyers
Respondent: Phillips Fox lawyers
ORDERS MADE ON APPEAL: 1.The decision of the Arbitrator, dated 28 November 2005 is revoked and the following decision is made in its place:
1.That the Respondent (Liverpool Community Health) pay the Applicant (Ms Wannell) weekly compensation pursuant to sections 36 and 40 of the Workers Compensation Act 1987 as follows:
(a)from 16 July 2004 to 14 August 2004 at the rate of $711.50 per week pursuant to section 36 and;
(b)from 15 August 2004 to 29 August 2004 at the rate of $112.34 pursuant to section 40 and;
(c)from 30 August 2004 to 13 September 2004 at the rate of $74.89 pursuant to section 40.
2.That the Respondent pay the Applicant’s reasonable medical, hospital and like expenses under section 60 of the Workers Compensation Act 1987.
3.The Respondent (Liverpool Community Health) pay the Applicant’s cost of the
hearing before the Arbitrator.
2.The Respondent pay the Appellant’s costs of the Appeal.
BACKGROUND TO THE APPEAL
On 8 March 2006 Norma Wannell (‘Ms Wannell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against two decisions, dated 25 November 2005 and 8 February 2006.
The Respondent to the Appeal is Sydney South Western Area Health Service (Liverpool Community Health) (‘Liverpool Community Health’).
On 7 August 2005 Ms Wannell commenced proceedings in the Commission alleging that as a result of exposure to abuse and harassment by a co-worker in the course of her employment she suffered a psychiatric injury.
As a result of the alleged psychiatric injury Ms Wannell was unable to work from 16 July 2004 to 30 August 2004.
Ms Wannell claims weekly compensation payments in respect of the closed period, from 16 July 2004 to 30 August 2004 (the parties subsequently filed wage schedules, which were in agreement and extended the claim to 13 September 2004), of incapacity together with medical, hospital and related expenses under sections 36,40 and 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Ms Wannell notified Liverpool Community Health of her alleged injury and made a claim for weekly benefits and medical expenses. Liverpool Community Health advised Ms Wannell, following the lodgement of her claim, that they denied liability for the claim.
The Arbitrator’s first decision, records the basis of the denial of Ms Wannell’s claim as: “she did not suffer psychological injury as defined by s4 and s11A (3) of 1987 Act”.
The Arbitrator convened a teleconference between the parties on 28 October 2005. At that teleconference, the parties agreed that the matter was suitable to be determined ‘on the papers.’ The parties were directed to file written submissions: Liverpool Community Health to file their submissions within seven days, and Ms Wannell to file her submissions seven days thereafter.
The Arbitrator delivered her decision (first decision) and a Certificate of Determination was issued on 28 November 2005. The Arbitrator found in favour of Liverpool Community Health and entered “an award in favour of the respondent (Liverpool Community Health) in respect of the Applicant’s (Ms Wannell) claimed medical expenses and weekly payments of compensation”.
On 28 November 2005 when the Arbitrator delivered the decision she had only received the written submissions from Liverpool Community Health. It would seem that as a result of a Commission error, Ms Wannell’s submissions, which had been filed in the Commission, had not been referred to the Arbitrator before she handed down the decision.
Ms Wannell’s solicitors upon receiving the Arbitrator’s decision, filed a notice of appeal in respect of the Arbitrator’s decision and wrote to the Registrar of the Workers Compensation Commission requesting that the Arbitrator review the decision.
On 8 February 2006 the Arbitrator handed down a second decision (‘second decision’) in respect of this matter. Utilising section 350 of Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) the Arbitrator reconsidered her first decision.
The Arbitrator confirmed her earlier decision in favour of Liverpool Health service. It is against these two decisions that Ms Wannell seeks leave to appeal.
THE DECISION UNDER REVIEW
The first ‘Certificate of Determination’, dated 28 November 2005 records the Arbitrator’s orders as follows:
“1.Award in favour of the respondent in respect of the Applicant’s claim for medical and expenses and weekly payments of compensation.
2.No order as to costs.”
There is no Certificate of Determination in respect of the Arbitrator’s second decision. The orders contained in her second decision dated 8 February 2006 were as follows:
“Pursuant to S350 Workplace Injury Management and Workers Compensation Act 1998 the Commission orders that:
1. The statement of reasons and certificate of determination dated 24/11/05 be
confirmed”. (The Arbitrator wrongly recorded the Date of Determination of the first Certificate of Determination as being 24 November 2005 rather than 28 November 2005).”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·whether the Arbitrator had the power pursuant to section 350 of ‘the 1998 Act’ to reconsider the first decision and if so whether the Arbitrator should have reconsidered the original decision dated 28 November 2005;
·whether the Arbitrator erred in respect of her findings in respect to, and application of, section 9A of the ‘1987 Act’;
·whether the Arbitrator erred in respect of her finding that Ms Wannell’s actions vis-à-vis the co-worker had taken her out of the course of her employment, and
·whether the Arbitrator’s decision was vitiated because of factual or discretionary error.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The appeal concerns the entirety of Ms Wannell’s entitlement to compensation and her various claim’s exceeded $5,000 in value as such the requirements of section 352(2) (a) and (b) of the 1998 Act are satisfied.
Leave to appeal is granted to Ms Wannell.
Was it appropriate in the circumstances for the Arbitrator to reconsider the decision?
Before considering the issues relating to the Arbitrator’s primary decision it is necessary to determine whether the use of section 350 of the 1998 Act to reconsider a decision which has been made without one party’s submissions is appropriate.
The first decision of the Arbitrator contained an error of law. Ms Wannell was denied natural justice, the Arbitrator not having Ms Wannell’s written submissions before the Arbitrator delivered her first decision. This is a fundamental principle of justice, which was confirmed by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141.
The Commission rules have been formulated in order to allow matters to be determined quickly, in a less formal setting, whilst providing justice as between the parties. It was appropriate for the Arbitrator to determine this matter ‘on the papers’, however, it is difficult to understand how the Arbitrator decided the matter in the absence of one party’s submissions. A further teleconference or a direction to the Registrar to ascertain why Ms Wannell had not submitted her written submissions would have revealed the Commission’s error.
Once an Arbitrator has made a determination without the benefits of one party’s submissions it is, in my opinion, inappropriate to use section 350 of the 1998 Act as a vehicle to cure the problem. Justice must be seen to be done, an ‘intelligent and instructive member of the public’ would always be left with the suspicion that the Arbitrator’s second decision was a justification of the first decision rather than a proper and balanced re-determination of the issues, having regard to both parties submissions (see Hercules v Brennan [1982] BC8200314 G106 of 1982 (unreported, Fitzgerald J., 8 November 1982)).
The extent of a Presidential Member’s powers to review an Arbitrator’s decision was considered in Aluminium Louvres & Ceilings Proprietary Ltd v Xue Qin Zheng [2006] NSWCA 34.In that decision Bryson JA defined the extent of that power as follows:
“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. I see no ground upon which it could be doubted that the Deputy President acted within her discretionary powers in disposing of the matter as she did. No rule of law required the Arbitrator not to limit cross-examination, and the view that there was no want of procedural fairness was a view which the Deputy President could reasonably reach without any error of law:”
On appeal, Liverpool Community Health has submitted that as Ms Wannell requested that the Arbitrator review the first decision as an alternate to an appeal, in accordance with the provisions of section 352(7) of the 1998 Act, as there is no legislative provision which would enable Ms Wannell to appeal the second decision. Liverpool Community Health’s submission is misconceived. Section 352 (7) provides the Presidential Member with the power after a matter has been appealed to decide the matter, or, as an alternative, refer the matter back to an Arbitrator for rehearing. The section does not provide the parties with alternate rights. Both of the determinations by the Arbitrators were ‘decisions’ and as such, subject to the limitations imposed under section 352, are reviewable by a Presidential Member.
I am of the view, therefore, that the Arbitrator’s primary decision dated 28 November 2005 should be revoked. At all times the parties position in this matter has been that it is appropriate that the matter be determined ‘on the papers’. As such it is appropriate that the matter be re-determined on appeal on the papers. In doing so, I have considered not only the submissions on appeal but additionally the parties’ submissions before the Arbitrator.
Additionally for reasons set out below, I am of the opinion the Arbitrator’s primary decision is vitiated because of errors, both in the Arbitrator’s legal and factual findings, particularly in relation to section 9A of the 1987 Act.
EVIDENCE AND SUBMISSIONS
In order to re-determine this matter, analysis of the evidence is required. Ms Wannell was not cross-examined. In those circumstances her evidence, in my opinion, should be accepted other than in circumstances where, her evidence is implausible or there is unequivocal opposing evidence upon which it would be expected Ms Wannell would adduce corroborative evidence in respect of her claim or evidence in reply.
Ms Wannell commenced employment with Liverpool Community Health in December 1999. She was described by her supervisors and co-workers as a conscientious worker. The statements of her supervisors and co-workers establishes that the work carried out by Ms Wannell and her co-workers was stressful work, dealing with disenfranchised members of the community.
Ms Wannell like all members of community was subject to stresses outside the workplace as a result of family and financial circumstances. There is no lay or medical evidence that Ms Wannell was incapacitated as a result of these stresses. To the contrary, the evidence establishes that notwithstanding these stresses Ms Wannell was able to function and perform her work activities. Mr Garry Christopher Clark, the business manager for Liverpool Community Health said at paragraph 5 of his statement 30 July 2004:
“I interact with Ms Wannell around once per week. Ms Wannell gets very involved with her work. She is diligent, trustworthy and reliable.”
Lynda Johnson, Ms Wannell’s immediate supervisor said of Ms Wannell at paragraphs 5 of her statement, dated 27 July 2004 following:
“In the time that I have worked with Ms Wannell I have found that she has a solid work ethic. She is not necessarily a fast worker, but she is thorough. She came here with basic skills, and we have trained her.”
Mrs Johnson goes on to record that Ms Wannell was subject to a “lot of personal pressures which affected her ability to work”. Mrs Johnson’s statement does not record how the personal pressures affected Ms Wannell's work and there is no evidence that Ms Wannell required time off work or medical treatment in respect of the ‘personal problems’.
Ms Wannell continued to work until Wednesday 14 July 2004. Ms Wannell's evidence was that she had continuing problems with a co-worker Russell Pigram. Ms Wannell's evidence concerning the events of 14 and 15 July 2004 was as follows: -
“On Wednesday, 14 July 2004. I had an appointment to attend for a personal matter. I had informed work as early as the previous Monday that I would be in to work late, that morning, for this reason. Russell Pigram knew this.
On Wednesday morning I called work at about 9:10 a.m. and spoke to the work placement girl, whose name is Juliett [sic]. I just rang to check if everything was OK.
I asked her if Russell was there, and she told me that she had not seen him. She also told me that Sue from the Department of Housing let her in and that the security guard had just opened the door.
I then telephoned Russell Pigram on his mobile and reminded him that I had asked him to be on time. He then told me that he was at work. I then informed him of the conversation I had just had with Juliett [sic] and he responded that he was just getting the mail and buying scallops because he was sick. I asked him to return to work as soon as possible.
I got back to work at 10:15 a.m. the security guard, Paul, told me that Russell Pilgram had had a go at Juliett for saying that he wasn’t at work.
Later that afternoon I saw Russell Pigram and spoke to him about this. I took him into the meeting room, where I spoke with him on our own. There were no witnesses.
I told Russell that I had asked him to be on time that day and I also told him that he should apologise to Juliett for abusing her as she was only a student placement.
He replied:
“I am not going to fucking apologise to anybody, I done nothing wrong”
At this point, he stood up and came towards me. He appeared angry and aggressive. I then stood up and moved back from him as I felt threatened.
He then yelled at me saying:-
“It’s alright you, you can do what you fucking want to do.”
He kept saying this over and over. He was accusing me of being out of the office for three hours the previous week. I explained to him where I had been and I then told him that he should not question my movements and pointed out to him that my whereabouts were always known as I would write this on a whiteboard, and he did not.
At this point, he walked out of the meeting room and was still swearing and carrying on. I followed him out of the meeting room and told him to go outside and try and calm down. I apologise to the staff and customers at present. I then went outside to speak to Russell Pigram.
Russell was continuing to yell and swear and he said to me that he could not take this any longer.
I told him that I couldn’t take his swearing and abuse any longer.
When this exchange was taking place Russell was standing near a brick wall and near one of the staff vehicles. He was punching the wall with his fist and kicking it with his leg while he was saying these things to me.”
Ms Wannell's evidence was that these events had affected her to the extent that she was unable to sleep that night. Ms Wannell's evidence was to the effect that the following day the confrontation with Russell continued.
Liverpool Community Health’s reply contained statements from three co-workers which were directly connected with this confrontation. They were; Susan Clayton, Russell Pigram and Paulo Paiaaua (the security guard). The evidence of these three co-workers does not directly contradict any of the evidence of Ms Wannell. Their evidence confirms the confrontation between Ms Wannell and Russell Pigram. Although the evidence of Russell Pigram does not relate in details all the circumstances of the confrontation, his statement by and large corroborate Ms Wannell's version of events.
Russell Pigram's evidence in relation to the confrontation was contained in paragraphs 19 to 27 of the his statement dated 27 July 2004 as follows:-
“On the week that Lynda was away I did not get too much sleep myself. I have a lot of personal issues in my life, and this is the reason for me not sleeping.
On the Wednesday Ms Wannell told me that she was going to the doctors the following morning. I think that she told me why she was going, but I cannot remember what it was for. I do not usually remember why people are going to the doctors as this is each persons own concerns. I had told Ms Wannell that I would be in early the following morning to open up.
On the Thursday morning that Lynda was away Ms Wannell rang in at 9:00am and spoke to the student that was working her named [sic] Juliette. Juliette apparently told Ms Wannell something along the lines that I was not in the office at the time.
At that time I was actually at the shops getting the mail and the milk. I had been in to the Hub by that time and opened up, and I shut the office when I went out. I was eating a scallop when Ms Wannell called me at 9AM. She asked me where I was and I told her what I had been doing. Ms Wannell sounded upset and agitated when she spoke to me – I don’t think that she did this to upset me, I think it was the fact that she was frustrated because she was relying on me. I have arrived late at times but on this day I was in and was doing my daily chores.
I told Ms Wannell on the phone that I had been in since 8:45AM and I was at the shops doing the mail. I spoke to her in an upbeat way and tried to defend myself. I was not happy with the way that she spoke to me.
I then returned to the office, and when I got in I asked who told Ms Wannell that I was not in. I said this strongly. Juliette said that it was her, and I walked outside to have a smoke as I was not happy with how Ms Wannell had spoken to me on the phone. After the smoke I came back in and apologized to Juliette, and she was fine.
Ms Wannell arrived around 9:30AM. She looked pale and off, as if she was not feeling too well. I cannot recall if we had any conversation at that time.
The place was busy that morning. In the afternoon, maybe between 2 and 4PM, Ms Wannell and I had words. Ms Wannell and I had words over work issues – she said something to me about my actions and I think that I commented about her taking 3 ½ hours for her to go to the Food Bank at Wetherill Park. I got pissed off and went out the back.
Ms Wannell then came out the back and we again spoke. We both got a little heated, but it then settled down and we sorted things out. I thought that we had sorted things out but I felt Ms Wannell still wanted to say more but she didn’t.
I remember when Ms Wannell and I argued that I told Ms Wannell that I was stressed out and I was thinking of leaving. She told me that she was also stressed, and when she said this she spoke about workloads.
Every Thursday afternoon we all look fatigued, but Ms Wannell looked more fatigued than normal. We spoke about other issues again that afternoon and Ms Wannell spoke to me alright.”
Following the confrontation with Russell Pigram, Ms Wannell was unable to work up until 30 August 2004. On her return to work there continued to be some issues between Ms Wannell and management however this would seem to be irrelevant, as this is outside the parameters of her claim.
During the period of her incapacity she was certified totally unfit to work by Dr Hamad.
His certificates recorded that Ms Wannell’s incapacity was a result of “anxiety/depression related to work stresses.”
Liverpool Community Health qualified Dr Moore (psychiatrist) who, although he doubted that the factual validity Ms Wannell’s claim, confirms that in his opinion Ms Wannell was suffering from “low-grade general anxiety.”
The uncontested evidence therefore establishes the following:
· the nature of Ms Wannell’s employment was stressful;
·that up until the 15 July 2004 Ms Wannell had been subjected to various non-work related stressors. In spite of these non- work related stressors Ms Wannell had been able to work up until the confrontation with Mr Pigram on 14 and 15 July 2004;
·on or about 14 and 15 July 2004 Ms Wannell had a confrontation with a co-worker over work issues in which the co-worker used, in a workplace setting, unacceptable swear words, and
·on the following day at approximately 11 a.m. Ms Wannell consulted her general practitioner Dr Hamad and was certified, totally unfit for work, because of the anxiety/depression in respect of the period 16 July 2004 to 14 August 2004 and thereafter partially incapacitated between 15 August 2004 on 30 August 2004.
A summary of Liverpool Community Health’s submissions before the Arbitrator is:
· Ms Wannell did not suffer an injury within the meaning of the 1987 Act;
·if it is found that she did suffer injury as defined in section 4 of the 1987 Act the work was not a significant contributing factor to the injury or alternatively the psychiatric injury arose as result of reasonable performance appraisal by Liverpool Community Health, and
·that Ms Wannell’s interactions with her co-worker Mr Pigram which led to a psychiatric injury were outside the course of her employment.
On appeal Liverpool Community Health submits that:
·the Arbitrator’s legal and discretionary decision in respect of section 9A of the 1987 Act was correct, and not open to review;
·the Arbitrator’s reference to the statements of Ms Clayton, and Ms Johnson in her first decision, which were annexed to Liverpool Community Health’s written submissions to the Arbitrator and had not being admitted into evidence, did not amount to a reviewable error;
·there was no inconsistency in the Arbitrator’s finding that Ms Wannell had suffered a psychological injury at the beginning of her decision but later in the decision had found that Ms Wannell’s actions which led to the injury were outside the course of her employment, and
·the Arbitrator’s finding that Ms Wannell’s actions in respect of a co-worker Mr Pigram, which led to her injury were actions outside the scope of her employment was open on the evidence and therefore not reviewable on appeal.
DISCUSSION AND FINDINGS
Did Ms Wannell’s actions take her outside the course of her employment?
In respect of this issue the Arbitrator, said the following at paragraph 20 of her decision:
“The Applicant and Mr Glancy have provided considerable evidence that the predominant source of distress was Mr Pigram, her workplace colleague. Mr Glancy reported that in respect of her relationship with Mr Pigram she described this as protective of him. The Respondent proposed that this extended beyond the ordinary boundaries of work colleagues, and she thus took herself outside the normal scope of her employment. I find that I am persuaded by this argument. I find that I accept Mr Johnson’s statement that the Applicant had no authority in respect of this. The Applicant’s description of her protective relationship with Mr Pigram is at odds with the description of his aggressive and threatening behaviours towards her and others as described in her statement.”
There are, with respect, a number of errors in relation to the Arbitrator’s assessment of the evidence. Ms Wannell’s work relationship with Russell Pigram extended over approximately 3 years. The Arbitrator failed to identify the relevant period of that relationship in respect to Ms Wannell’s claim. The relevant period was the two days prior to the commencement of Ms Wannell’s incapacity as result of a “psychological injury”. It is clear that in those two days, however one would describe Ms Wannell’s and Russell Pigram’s work relationship, the protagonists had a heated and stressful argument over work issues, in particular, whether Mr Pigram was at work when he should have been.
The second error was the Arbitrator’s adoption of a description of the relationship that is “a protective relationship”, without analysing what actually occurred in the two days leading up to the commencement of Ms Wannell’s claim.
The third error was the rejection of Ms Wannell’s assertion that Mr Pigram was aggressive and threatening towards her. Mr Pigram’s statement does not contradicte Ms Wannell’s statement in regard to this assertion. In fact, in my opinion, it supports Ms Wannell’s version of events: for example Mr Pigram states “Ms Wannell and I had words over work issues – she said something to me about my actions and I think I commented about her taking three a half hours for her to go to the Food Bank at Wetherill Park. I got pissed off and went out the back.” Later in the statement, Mr Pigram said “Ms Wannell then came out the back and we again spoke. We both got a little heated…” The Arbitrator in rejecting Ms Wannell’s assertion that Pigram was aggressive and threatening, did not refer to the evidence of the security guard Mr Paiaaua. He said at paragraph 11 of the statement “I remember that when Lynda was away, Russell and Ms Wannell had an argument out the back… I’d heard Russell shouting, I do not know if this was at Ms Wannell”.
On the totality of the evidence its would seem clear that in the two days leading up to Ms Wannell’s incapacity Ms Wannell perceived Mr Pigram’s actions towards her to be “aggressive and threatening”. On the totality of the evidence in my opinion, that perception was reasonable. However the long-term relationship between Mr Pigram and Ms Wannell may be described, the evidence makes it clear that the confrontation in the two days leading to Ms Wannell’s incapacity was in respect of work issues in the course of Ms Wannell’s employment with Liverpool Community Health. It follows therefore that I reject the Arbitrator’s findings in relation to this issue.
Section 9A of the 1987 Act
At paragraph 20 of the decision, the Arbitrator, in respect of this issue said the following:
“I find that on the balance I accept the opinion of Dr Moore that the Applicant had a generalised anxiety condition, which was not substantially related to work. I find that any work issue, which may have effected (sic) her work condition were not of a nature to be weighty or large. The predominant stressors at the relevant time were non-work related arising from significant family problems and possibly a relationship with Mr Pigram which was beyond the workplace context.”
It is an obvious proposition, but it is particularly relevant in this case that Section 9A must be judged in the context of the facts of the particular case. In this claim following two days of confrontation with a co-worker Ms Wannell was diagnosed as suffering from a psychological condition which incapacitated her for work for a relatively short period of time. Ms Wannell is not claiming, as I understand her claim, a long-lasting psychiatric injury. Viewed in this context, it becomes clear, in my opinion, that once Ms Wannell’s version of the events in relation to the confrontation with Mr Pigram over the two-day period prior to the diagnosis is accepted, then work is clearly a substantial contributing factor to the injury, either being a direct cause of an injury simpliciter, or aggravation of an underlying psychological condition resulting in the short period incapacity.
Even accepting Dr Moore’s and the Arbitrator’s assessment that Ms Wannell was suffering from an underlying psychological condition related to non-work factors, in my view the short period of incapacity following immediately upon a stressful confrontation with a co-worker would inexorably lead to the conclusion that the confrontation was a substantial contributing factor to the aggravation of the underlying condition leading to the short period of incapacity. This issue was recently considered by the Court of Appeal in Murray v Shillingsworth [2006] NSWCA 367. Relevantly, in that case Einstein J. said the following (paragraph 60 to 64):
“There is nothing in the reasons to suggest that the trial judge failed consistently with Mercer, to regard the essential question in terms of whether or not the employment concerned was, within the meaning of s 9A (1) of the Act, ‘a substantial contributing factor to the injury’ as requiring an examination of the strength of the relevant causal linkage.
There is nothing in the reasons to suggest that the trial judge misdirected himself on the test of ‘bridging the gap’ between a contributing factor and a ‘substantial contributing factor’. In the case of a duly proven aggravation or acceleration of a pre-existing condition, a claimant will have travelled some of the distance towards showing the employment to have been ‘a substantial contributing factor to the injury’.
Counsel for the appellant submitted that for the purposes of s 4B (ii) of the Act:
i.It was enough if the contributing factor was a contribution to the aggravation;
ii.Once that contribution had occurred a ‘juristic entity’ was established;
iii.That juristic entity is an injury;
iv.Section 9A works upon that injury in the same manner in which it works upon an injury within the meaning of s 4(a) [of the definition of ‘injury’];
v.The statutory test is not satisfied if there is a substantial contributing factor to the aggravation;
vi.The statutory test is only satisfied if there has been a substantial contributing factor to a fully blown injury.
These submissions are misconceived. They fail to recognise that in the circumstance concerning an integer dealt with by s 4(b) (ii) [such as an aggravation of a disease] the only compensation is for the effect of the aggravation and not for the effect of the original non - aggravated disease.
His Honour approached the question of construction upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this approach. The fact that the work-caused dehydration was sufficient to "tip the balance" and was on the evidence, found to satisfy the requirement that it be shown that the employment concerned was a substantial contributing factor to the injury.”
Adopting his Honour’s analysis, if Ms Wannell was suffering from an underlying non work-related psychological condition the events at work in the two days before her incapacity clearly were sufficient to tip the balance from a manageable psychological condition to an incapacitating psychological condition.
It follows therefore that I am of the view that the Arbitrator erred in her finding in respect of section 9A of the 1987 Act and I find that employment was a substantial contributing factor to the injury.
Section 11A
Before the Arbitrator Liverpool Community Health submitted that Section 11A was applicable and as such Ms Wannell would not be entitled to compensation. This submission was rejected by the Arbitrator and on the facts, as I have found, section 11A can have no relevance to this claim. I therefore reject Liverpool Community Health’s submission in this regard.
It follows from my decision that I make the following findings:
1. Arising out of and in the course of Ms Wannell’s employment with Liverpool Community Health Ms Wannell was subjected to abuse and aggressive behaviour by a co-worker over a two-day period immediately before 16 July 2004.
2. As a result of the actions of the co-worker Ms Wannell sustained a psychological injury, being either an injury simpliciter or an aggravation of an underlying psychological condition.
3. As a result of the work injury Ms Wannell was totally incapacitated from 16 July 2004 to14 August 2004 and thereafter partially incapacitated for work between 15 August 2004 to 30 August 2004.
Ms Wannell asserts in her Application that her earnings were $711.50 gross per week. It would seem that this is her current weekly wage rate and as such for the period claimed she would be entitled to this amount. It would seem that Ms Wannell was paid sick leave during part of the period, she would, however be entitled to have her sick leave re-credited.
The parties’ wage schedules seem to be in agreement that between the 15 August 2004 and 29 August 2004 Ms Wannell returned to work performing suitable duties and was losing income of $112.30 per week.
There would seem to be an agreement based on wage schedules that between 30 August 2004 and 13 September 2004 Ms Wannell continued to be employed in suitable employment losing $74.89. Although there is no medical certificate for this last period of partial incapacity it would seem reasonable to make an award for this period. Following a period of incapacity it would seem to me reasonable for a worker to have a period of settling back into full-time employment.
DECISION
The decision of the Arbitrator, dated 28 November 2005 is revoked and the following decision is made in its place:
“1.That the Respondent (Liverpool Community Health) pay the Applicant (Ms Wannell) weekly compensation pursuant to sections 36, and 40 of the Workers Compensation Act 1987 as follows:
(a) from 16 July 2004 to 14 August 2004 and the rate of $711.50 per
week pursuant to section 36;
(b)from 15 August 2004 to 29 August 2000 at the rate of $112.34 pursuant to section 40, and
(c)from 30 August 2004 to 13 September 2004 at the rate of $74.89 pursuant to section 40.
2. That the Respondent pay the Applicant’s reasonable hospital, medical and like expenses under section 60 of the Workers Compensation Act 1987.
3. The Respondent (Liverpool Community Health) pay the Appellant’s costs of the hearing before the Arbitrator.
COSTS
The Respondent is to pay the Appellant’s costs of the Appeal.
Robert Harrington
Acting Deputy President
12 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
3
0