NSW WCC (NSW Workers Compensation Commission) Presidential Update ? October 2014

2 October 2014
Sydney Community College Inc v Mudie [2014] NSWWCCPD 62
Deputy President Roche

This case deals with a challenge to a factual finding of injury; alleged failure to consider general practitioner’s clinical notes and relevance of absence of contemporaneous evidence of complaint of injury.  It was held that:

• Inconsistencies between the worker’s medical evidence and medical histories need to be approached with caution.
• A worker can succeed without contemporaneous evidence of their complaints of injury.  In making a finding of injury, it is a matter of assessing and weighing up all of the evidence.  

9 October 2014
Reid v ANZ Banking Group Ltd [2014] NSWWCCPD 65   
President Keating

This case deals with incapacity; entitlement to weekly compensation; weight of evidence and onus of proof.  It was held that:

• The worker’s subjective views of her fitness to work are not determinative on the issue of incapacity.  Her evidence has to be weighed against the medical evidence.
• In the absence of any persuasive medical evidence, it was open to the arbitrator to find the worker had failed to discharge the onus of proof on the issue of incapacity.  There was no requirement for the arbitrator to accept the worker’s subjective evidence as to her incapacity.

13 October 2014
Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66
Deputy President Roche  

This case deals with deemed workers; whether a contract existed between a foster carer and the Department of Family and Community Services; intention to enter legal relations and consideration.  It was held that:

• There was no intention to enter into legal contractual relations.  The relationship between the worker and the Department was that of a volunteer and a government department.
• The money paid by the Department to Ms Bee was an allowance, to be used towards the needs of the foster child, and not consideration for entering into a contractual relationship.
• The money paid by the Department was an allowance to care for the foster children and not a payment in return for services rendered.
• Therefore Ms Bee was not found to be a deemed worker within the definition in schedule 1 of the 1998 Act.

14 October 2014
Undag v Bupa Care Services Pty Ltd [2014] NSWWCCPD 67
Deputy President Roche

This case deals with psychological injury; s 11A; reasonable action with respect to discipline and whether suspending a worker and reporting the alleged assault to the police was reasonable.  It was held that:

• The question of the reasonableness of the action taken by the employer requires an evaluative judgment of the whole process.
• The action may still be “reasonable action” even if a particular step or steps in the process are not reasonable. 
• It will not always be sufficient for the employer to say that it followed a set procedure or practice, if that procedure or practice is itself unreasonable.

Author: Stephen Marsh