Borges v Woolworths Group Limited - [2021] NSWPIC 22

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Borges v Woolworths Group Limited [2021] NSWPIC 22
APPLICANT:	Lunia Borges
RESPONDENT:	Woolworths Group Limited
MEMBER:	Kerry Haddock
DATE OF DECISION:	15 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for the cost of medical treatment for injury sustained on a journey, pursuant to section 10(3)(c) of the 1987 Act, after the applicant had undergone treatment for an accepted work injury; application of section 10(3A) of the 1987 Act; Australia and New Zealand Banking Group v Khullar [2020] NSWWCCPD 3 and Mission Australia v Eves [2020] NSWWCCPD 49 considered; Held- there was a real and substantial connection between the applicant’s employment and the accident out of which the injury arose; award for the applicant for the cost of C5/6 anterior cervical discectomy and fusion and incidental costs; no order made for payment of Medicare as Notice has expired.
DETERMINATIONS MADE:	1. That the respondent is to pay, pursuant to section 60 of the Workers Compensation Act 1987, the amount of $16,357 in respect of the cost of surgery, being C5/6 anterior cervical discectomy and fusion and incidental costs, performed by Dr Khong on 3 September 2019. 2. That no order is made in respect of the Medicare Notice of Past Benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Lunia Borges (Ms Borges) is employed by the respondent, Woolworths Group Limited (Woolworths) as a store person.

Ms Borges sustained an injury to her right elbow arising out of or in the course of her employment with the respondent on 7 February 2017. The respondent has accepted liability for that injury.
On 17 July 2017, the applicant sustained injury to her cervical spine, both shoulders and lower back when she was involved in a motor vehicle accident while driving home from a physiotherapy appointment. She was attending the appointment for treatment of her right elbow injury.
The applicant claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the cost of surgery to her cervical spine; associated costs; and Medicare Charge.
The applicant completed a Worker’s Injury Claim Form on 14 March 2019. She claimed that on 17 July 2017 she was driving home from a physiotherapy appointment to treat a work-related injury when she was involved in a motor vehicle accident. Her car was struck on the right side by another vehicle. She sustained injuries to her cervical spine, bilateral shoulders and upper back.
The applicant also completed an Other Injury Claim Form on 14 March 2019. She claimed that her usual route for the journey was “One Point Health Physio to Home”; and she did not divert from her usual route or interrupt her journey. The driver of the vehicle that struck her vehicle was at fault and the accident was reported to the police, but they did not attend. The applicant had made a CTP claim.
By letter dated 30 April 2019, the applicant’s solicitors notified Employers Mutual Limited, as agent for Woolworths Group (EML) of her claim, relying on section…

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 Borges v Woolworths Group Limited

Details

AGLC: Borges v Woolworths Group Limited [2021] NSWPIC 22
Case: [2021] NSWPIC 22
Decision Date: 15 March 2021

CaseChat Overview and Summary

In Borges v Woolworths Group Limited, the applicant sought compensation for medical treatment costs related to an injury sustained during a journey. The case was heard in the Workers Compensation Court. The primary issue was whether the applicant was entitled to compensation under section 10(3)(c) of the relevant Act for the treatment costs, given that the applicant had already undergone treatment for a work-related injury. The court had to consider the applicability of section 10(3A) of the Act, and referenced two precedent cases, Australia and New Zealand Banking Group v Khullar and Mission Australia v Eves, to aid in its decision-making.

The court analysed whether there was a real and substantial connection between the applicant's employment and the accident. It concluded that such a connection existed, allowing for the claim to proceed under the relevant statutory provisions. The court determined that the applicant was entitled to compensation for the cost of the C5/6 anterior cervical discectomy and fusion, as well as incidental costs associated with the treatment. However, the applicant's claim for payment of Medicare was dismissed, as the notice period had expired.

The court awarded the applicant compensation for the treatment costs, but declined to order payment of Medicare due to the expired notice period. The decision underscored the importance of establishing a real and substantial connection between the employment and the accident, as well as the need for timely notice of claims for additional compensation.

Orders