Bailey v Staff Australia Payroll Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Bailey v Staff Australia Payroll Services Pty Ltd [2024] NSWPIC 10

APPLICANT:

Dorren (Doreen) Bailey

RESPONDENT:

Staff Australia Payroll Services Pty Ltd

MEMBER:

Diana Benk

DATE OF DECISION:

9 January 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; consideration of ‘current work capacity’ under clause 9 of schedule 3 and ‘suitable employment’ under section 32A; Wollongong Nursing Home Pty Limited v Dewar considered; Held – applicant sustained an injury arising out of or in the course of her employment with the respondent; applicant has no current work capacity; award for the applicant pursuant to section 37.

DETERMINATIONS MADE:

The Commission determines:

1.     That the applicant has had no current work capacity since 25 November 2022.

2.     That the pre-injury average weekly earnings figure (PIAWE) is $893.84

3. That the respondent is to pay weekly compensation to the applicant pursuant to s 37 of the Workers Compensation Act 1987 (80% of the PIAWE) as indexed from 26 November 2022.

STATEMENT OF REASONS

BACKGROUND

1. Ms Doreen Bailey (the applicant) sustained injury to her lumbar spine in the course of her employment on 14 June 2021. Staff Australia Pty Ltd (the respondent) accepted liability for weekly compensation and treatment expenses.

2. Liability was subsequently denied on 25 November 2022 on the basis of a medico-legal report of Dr Sheehy who opined any workplace aggravation had ceased and ongoing incapacity was due to non work related factors.

3. An Application to Resolve a Dispute (ARD) was then filed in the Personal Injury Commission (Commission). The matter underwent the usual case management pathway, ultimately proceeding to arbitration on 16 November 2023 following impasse at conciliation.  The applicant was represented by Mr Hickey of Counsel instructed by Ms Panju. The respondent was represented by Mr Gaitanos of Counsel instructed by Ms Zreika. An insurer representative was present.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues are in dispute:

   (a)    whether the aggravation of the underlying disease has ceased, and

   (b)    if not, the extent of incapacity arising therefrom.

2. The law relevant to this application is found in the Workers Compensation Act 1987 (the Act).

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    ARD and attached documents;

   (b)    Reply and attached documents, and

   (c)    Application to Admit Late Documents filed 27 October 2023 and 8 November 2023 (AALD).

Oral evidence

1. There was no oral evidence nor cross examination.

Applicant’s evidence

1. In her statement dated 11 September 2023 the applicant confirmed she was asymptomatic prior to her lifting incident as a warehouse assistant on 14 June 2021. The statement confirms her duties were predominantly manual where she was required to manipulate weights exceeding 120kg at times.

2. The statement provides the undisputed history that the company doctor certified her unfit for a period of two months. Return to work on restricted duties failed after six shifts due to an aggravation in symptoms.

3. The statement confirms sitting and standing are…