October 2014

NSW WCC (Workers Compensation Commission) Presidential Update - September 2014

28 August 2014
Northern NSW Local Health District (Tweed Heads Hospital) v Conaghan [2014] NSWWCCPD 54
Deputy President O'Grady

This case deals with section 4 Workers Compensation Act 1987; injury arising out of or in course of employment; worker injured as a result of altercation with fellow worker and its consequences. It was held that:

  1. The worker was involved in an altercation at work with a co-worker. The worker was then subjected to discriminatory and harassing treatment by his co-workers. The worker was arrested for assault in relation to the initial incident, to which he pleaded guilty. The events which gave rise to the altercation and its consequences were all related to the worker's employment.
  2. The worker's injury was found to have arisen out of the worker's employment.  

2 September 2014
Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55
Deputy President Roche 

This case deals with a claim for weekly compensation; meaning of “no current work capacity”, “current work capacity” and “suitable employment” in s 32A of the Workers Compensation Act 1987 and relevance of unavailability of light duties previously provided by the employer. It was held that:

  1. An injured worker’s ability to earn in suitable employment requires identification of whether there are any “real jobs” for which they are suited, having regard to the factors identified in section 32A.
  2. Light duties are not typically suitable employment because they have been made up in order to comply with employer’s obligation to provide suitable duties. In some circumstances light duties can be “suitable employment” as long as it is a real job that is readily available in the labour market.
  3. The arbitrator erred in assessing whether the worker had an ability to return to work in “suitable employment” by reference to the availability of light duties, which had been withdrawn, rather than by reference to the legislation.     

10 September 2014
Hunter New England Local Health Network v Turnbull [2014] NSWWCCPD 58
Deputy President O'Grady 

This case deals with a claim for lump sum compensation for chronic/recurrent pseudomonas infection; causation of bronchiectasis and causation of infection. It was held that:

  1. Causation can be established on circumstantial evidence. The worker was not required to establish with scientific certainty that her infection arose out of her employment, rather she had to establish on the balance of probabilities that such was the case. Whether or not the inference is open to be drawn depends on the quality of the evidence, particularly in terms of the degree of the "possibility" involved.  

11 September 2014
Sydney Local Health District (wrongly sued as Sydney South West Area Health Service) v Fragar [2014] NSWWCCPD 59
President Keating 

This case deals with section 10 of the Workers Compensation Act 1987 and whether nurses’ accommodation unit was a place of employment. It was held:

  1. The worker worked for Lithgow and Canterbury hospitals. The worker was permitted to stay overnight in the nurses units at Canterbury hospital before commencing her shift the following day. The worker had completed her shift at Lithgow hospital and sustained injuries while she was travelling from Lithgow hospital to the nurses units at Canterbury where she was staying overnight before commencing work the following day.
  2. Canterbury hospital had control over the units. Occupation was restricted to staff needing temporary accommodation before or at the end of a shift. The hospital determined how long staff could occupy the unit and the units were on premises owned and occupied by the hospital. The accommodation was both a place of abode and place of employment. The worker's injuries arose on a journey to work at Canterbury hospital.


Author: Stephen Marsh