Anderson v Grocery Delivery E-Services Australia Pty - [2022] NSWPIC 440

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Anderson v Grocery Delivery E-Services Australia Pty [2022] NSWPIC 440
APPLICANT:	Shawna Anderson
RESPONDENT:	Grocery Delivery E-Services Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	5 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits on the basis of no current work capacity; whether incapacity results from left shoulder injury; evidence of workplace stressors causing psychological decompensation following return to work; whether secondary psychological symptoms also; Calman v Commissioner of Police and McCarthy v Department of Corrective Services considered; Held — ongoing physical and secondary psychological symptoms materially contributed to incapacity; no current work capacity; award for the applicant for weekly compensation pursuant to section 37(1) of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	The Commission determines: 1. In the period 14 June 2021 to date and continuing, the applicant has had no current work capacity as a result of the injury on 17 December 2020. 2. Award for the applicant for weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 14 June 2021 to date and continuing, based on the agreed pre-injury average weekly earnings (PIAWE) rate of $1,063.75, as periodically indexed. 3. The respondent to pay the applicant’s reasonably necessary expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Shawna Anderson (the applicant) was employed by Grocery Delivery E-Services Australia Pty Ltd (the respondent) as a picker/packer.
On 17 December 2020, the applicant sustained an injury to her left shoulder when her arm was struck by a trolley being pushed by another worker.
The respondent’s insurer paid the applicant weekly compensation in respect of the injury until liability was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 May 2021.
The applicant sought review of the insurer’s decision but it was maintained and amended in further notices issued on 30 June 2021 and 4 February 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 12 May 2022. The applicant seeks weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 (the 1987 Act) from 14 June 2021 to date and continuing.

PROCEDURE BEFORE THE COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 25 July 2022. The applicant was represented by Mr Bruce McManamey of counsel, instructed by Ms Basema Elmasri. The respondent was represented by Ms Kavita Balendra of counsel, instructed by Mr Dean Pefani. A representative from the insurer was also present.
During the conciliation conference, the parties informed me that the applicant’s pre-injury average weekly earnings (PIAWE) figure was agreed at $1,063.75. Leave was granted to the applicant to amend the ARD to include a general claim for compensation pursuant to s 60 of the 1987 Act.

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

Case: [2022] NSWPIC 440
Decision Date: 5 August 2022

CaseChat Overview and Summary

The case of Anderson v Grocery Delivery E-Services Australia Pty involved the applicant seeking weekly compensation benefits on the basis of a lack of current work capacity. The applicant alleged that his incapacity stemmed from a left shoulder injury and subsequent psychological decompensation due to workplace stressors after returning to work. The dispute was adjudicated in the Queensland Civil and Administrative Tribunal.

The primary legal issues addressed by the court were whether the applicant's incapacity was a result of the left shoulder injury and whether workplace stressors led to secondary psychological symptoms. The court had to consider whether these factors materially contributed to the applicant's incapacity and lack of current work capacity. Relevant cases such as Calman v Commissioner of Police and McCarthy v Department of Corrective Services were referenced to aid in the decision.

The court found that the ongoing physical symptoms from the left shoulder injury and the secondary psychological symptoms due to workplace stressors materially contributed to the applicant's incapacity. The tribunal concluded that the applicant had no current work capacity. As such, the court awarded the applicant weekly compensation benefits in accordance with section 37(1) of the Workers Compensation Act 1987.

The tribunal's final orders included the granting of weekly compensation benefits to the applicant, recognising the impact of both the physical injury and the secondary psychological symptoms on his capacity to work. The decision underscored the importance of considering both physical and psychological factors in assessing work capacity and entitlement to compensation.

Orders