Wiech v Aldi Stores - [2017] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Wiech v Aldi Stores [2017] NSWWCCPD 19
APPELLANT:	Teodozja Wiech
RESPONDENT:	Aldi Stores
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3134/16
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	21 November 2016
DATE OF APPEAL DECISION:	5 May 2017
SUBJECT MATTER OF DECISION:	Alleged factual and discretionary errors: weight of evidence; s 37 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Kells the Lawyers
Respondent:	Edwards Michael Powell Lawyers
ORDERS MADE ON APPEAL:	1. Paragraphs 1, 3 and 4 of the Arbitrator’s Certificate of Determination of 21 November 2016 are confirmed. 2. Paragraph 2 of the Certificate of Determination of 21 November 2016 is revoked and the following order is made in its place: “2. There is to be an award for the applicant in the sum of $879.61 per week from 19 July 2014 to 27 August 2016.”

INTRODUCTION

This appeal concerns a claim for weekly compensation under Pt 3 Div 2 of the Workers Compensation Act 1987 (the 1987 Act). In particular, the worker challenges the Arbitrator’s finding that she had a current capacity to work 30 hours per week as a librarian.
For the reasons that follow, the appeal is successful on that challenge.

BACKGROUND

Teodozja Wiech, the appellant worker, was employed by Aldi Stores, the respondent, as a buying administration assistant. In November 2013 Ms Wiech suffered an elbow and wrist injury which resulted in a period of incapacity.
Following Ms Wiech’s return to duties in January 2014, a series of incidents took place involving conflicts with management and other staff which Ms Wiech alleges culminated in a psychological injury. The pleaded date of injury is 9 January 2014.
It is apparent that at some point prior to September 2014 Ms Wiech made a claim for workers compensation benefits. However, the details of the claim are not in evidence. She was paid weekly compensation.
On 19 September 2014, Gallagher Bassett Workers Compensation NSW (Gallagher Bassett), then workers compensation insurer for the respondent (now Allianz Australia Workers Compensation (NSW) Ltd), wrote to Ms Wiech declining liability for the claim on the basis that she had not sustained a psychological injury in the course of her employment with the respondent. In the alternative, if such an injury was established, Gallagher Bassett alleged that it was the result of reasonable actions taken by the respondent with respect to performance appraisal and discipline. As a consequence, it declined liability pursuant to s 11A of the 1987 Act.
On 17 January 2016, Ms Wiech lodged an Application to Resolve a Dispute in the Commission alleging a major depressive disorder and co-morbid anxiety. She relied on a series of incidents previously occurring in the workplace. Ms Wiech claimed weekly compensation from 19 July 2014 to 27 August 2016 pursuant to s 37 of the 1987 Act, that is, weekly compensation during the second entitlement…

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.

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Details

AGLC: Wiech v Aldi Stores [2017] NSWWCCPD 19
Case: [2017] NSWWCCPD 19
Decision Date: 5 May 2017

CaseChat Overview and Summary

Teodozja Wiech (Ms Wiech), the appellant, appeals against the determination of an Arbitrator of the Workers Compensation Commission of New South Wales (the Commission) who found she was entitled to weekly compensation payments for the period 19 July 2014 to 27 August 2015. Ms Wiech claims she is entitled to weekly compensation for the period 19 July 2014 to 27 August 2016. The insurer, Allianz Australia Workers Compensation (NSW) Ltd (the insurer) denies liability for the additional period. Ms Wiech asserts that the Arbitrator erred by finding that she had a capacity to work 30 hours per week as a librarian. Ms Wiech submits that the Arbitrator erred by finding that she could work in a library in addition to her study hours. The appeal was determined by President Judge Keating on the papers. The appeal was successful. The period of the award in favour of Ms Wiech was extended to 27 August 2016. The Arbitrator’s finding that Ms Wiech had a capacity to work as a librarian for 30 hours per week was an error. Ms Wiech’s capacity to work was 15 hours per week as a librarian. The parties agreed that the appropriate hourly rate for work in a library was $30 per hour. The appeal was successful on that issue. Accordingly, the award in favour of Ms Wiech was reduced to $879.61 per week from 19 July 2014 to 27 August 2016.

Orders