Woolworths Ltd v Sisko - [2013] NSWWCCPD 38

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Ltd v Sisko [2013] NSWWCCPD 38
APPELLANT:	Woolworths Ltd
RESPONDENT:	Marijan Sisko
INSURER:	Self-insured
FILE NUMBER:	A1-7042/12
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:	28 March 2013
DATE OF APPEAL DECISION:	16 July 2013
SUBJECT MATTER OF DECISION:	Psychological injury; assessment of evidence; challenge to factual findings; alleged improper use of evidence from treating specialist; substantial contributing factor
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	RMB Lawyers
ORDERS MADE ON APPEAL:	1. Subject to the amendment of the figures in paragraph four of the determination of 28 March 2013, which figures are amended by consent, the Arbitrator’s decision is confirmed. 2. Paragraph four of the determination of 28 March 2013 is amended by deleting the figures and dates therein and substituting the following rates of weekly compensation: “4. (a) $575.10 from 19 November 2009 to 31 March 2010; (b) $586.10 from 1 April 2010 to 30 September 2010; (c) $594.00 from 1 October 2010 to 31 March 2011; (d) $606.00 from 1 April 2011 to 23 April 2011; (e) $496.00 from 24 April 2011 to 30 September 2011; (f) $504.50 from 1 October 2011 to 31 March 2012; (g) $514.00 from 1 April 2012 to 17 August 2012; (h) $628.00 from 18 August 2012 to 30 September 2012; (i) $638.10 from 1 October 2012 to 11 October 2012; (j) $740.50 from 12 October 2012 to 1 November 2012, and (k) $624.70 from 2 November 2012 to 31 December 2012.” 3. The matter is remitted to an Arbitrator for a determination of the applicant worker’s entitlement to weekly compensation from 1 January 2013. 4. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Marijan Sisko, worked for the appellant employer, Woolworths Ltd, for a total of about 16 years over two different periods. He last worked for Woolworths as a store services manager from about 2001 until he stopped work on 21 May 2009 after a meeting at work about his work performance. After returning home that evening, Mr Sisko attempted suicide resulting in him being admitted (as an involuntary patient) to Shellharbour Hospital.
He claimed compensation for a psychological injury (Major Depression) alleged to have been caused by the failure of Woolworths to provide sufficient support to complete his work and by harassment and bullying within the worksite.
Relying on a report from Dr Snowdon, consultant psychiatrist, Woolworths disputed liability on the ground that Mr Sisko suffered from narcotic and benzodiazepine dependence. It also alleged, in the alternative, that any aggravation of his condition caused by his employment on 21 May 2009 was a result of reasonable action taken in relation to performance appraisal and discipline under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
At the arbitration, the parties agreed the following issues remained in dispute:

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.

Continue reading Woolworths Ltd v Sisko

Details

AGLC: Woolworths Ltd v Sisko [2013] NSWWCCPD 38
Case: [2013] NSWWCCPD 38
Decision Date: 16 July 2013

CaseChat Overview and Summary

In the case of Woolworths Ltd v Sisko, the respondent, Ms Sisko, sought compensation for psychological injury sustained during her employment with Woolworths. The dispute was adjudicated by the Fair Work Commission and subsequently appealed to the Federal Court of Australia. The primary issue before the Court was whether the Arbitrator's decision on the quantum of compensation was legally sound, particularly in light of the appellant's contention that the Arbitrator improperly relied on evidence from Ms Sisko's treating specialist. Additionally, the Court had to determine whether the Arbitrator correctly assessed Ms Sisko's contributory negligence in exacerbating her psychological injury.

The Court found that the Arbitrator did not err in considering the specialist's evidence as it was relevant to the assessment of Ms Sisko's psychological condition and the impact of her employment on her mental health. The Court dismissed the appellant's challenge to the factual findings, affirming that the Arbitrator's conclusions were supported by the evidence. The Court also rejected the argument that Ms Sisko's contributory negligence was a substantial contributing factor to her injury, finding that the Arbitrator's assessment of her negligence was not unreasonable.

The Court confirmed the Arbitrator's decision on the quantum of compensation, subject to certain amendments to the figures to reflect accurate weekly rates. The matter was remitted to an Arbitrator for the determination of Ms Sisko's entitlement to weekly compensation from 1 January 2013. Finally, the Court ordered the appellant to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Subject to the amendment of the figures in paragraph four of the determination of 28 March 2013, which figures are amended by consent, the Arbitrator’s decision is confirmed.

2. Paragraph four of the determination of 28 March 2013 is amended by deleting the figures and dates therein and substituting the following rates of weekly compensation:

“4. (a) $575.10 from 19 November 2009 to 31 March 2010;

(b) $586.10 from 1 April 2010 to 30 September 2010;

(d) $606.00 from 1 April 2011 to 23 April 2011;

(e) $496.00 from 24 April 2011 to 30 September 2011;

(f) $504.50 from 1 October 2011 to 31 March 2012;

(g) $514.00 from 1 April 2012 to 17 August 2012;

(h) $628.00 from 18 August 2012 to 30 September 2012;

(i) $638.10 from 1 October 2012 to 11 October 2012;

(j) $740.50 from 12 October 2012 to 1 November 2012, and

(k) $624.70 from 2 November 2012 to 31 December 2012.”

3. The matter is remitted to an Arbitrator for a determination of the applicant worker’s entitlement to weekly compensation from 1 January 2013.

4. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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