Carbery v Westpac Banking Corporation - [2021] NSWPIC 97

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carbery v Westpac Banking Corporation [2021] NSWPIC 97
APPLICANT:	Dong (Donna) Carbery
RESPONDENT:	Westpac Banking Corporation
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	27 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation pursuant to section 66 of the 1987 Act in respect of disputed injury to the right shoulder, cervical spine and bilateral feet due to nature and conditions of employment; injury to each body part notified and the subject of compensation claims at different times; whether discrete injuries; whether applicant barred from recovering compensation by section 261 of the 1998 Act; Held- applicant sustained injury to all body parts due to nature and conditions of employment; deemed date of injury is date of claim for lump sum compensation pursuant to section 16(1)(a)(ii) of the 1987 Act; section 261(3) applied; matter remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	1. The applicant sustained an injury to her right shoulder, both feet and cervical spine in the nature of an aggravation of a disease due to the nature and conditions of the applicant’s employment with the respondent between 13 July 2015 and 26 June 2016. 2. Employment with the respondent was the main contributing factor to the aggravation for the purposes of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 3. The injury is deemed pursuant to s 16(1)(a)(ii) of the 1987 Act to have occurred on 2 April 2019 when the claim for lump sum compensation pursuant to s 66 of the 1987 Act was made. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: Nature and conditions of employment between 13 July 2015 and 26 June 2016 (2 April 2019 deemed) Body parts: Right upper extremity (shoulder) Cervical spine Left lower extremity (foot) Right lower extremity (foot) Method: Whole Person Impairment. 5. The materials to be referred to the Medical Assessor are to include: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents other than the report of Dr Richard Powell dated 11 May 2016 from the heading “Diagnosis” at p 3 of the report onwards; c. documents attached to an Application to Admit Late Documents lodged by the applicant on 5 January 2021, and d. documents attached to an Application to Admit Late Documents lodged by the respondent on 12 January 2021.

STATEMENT OF REASONS

BACKGROUND

Ms Dong (Donna) Carbery (the applicant) was employed as a Customer Service Officer by Westpac Banking Corporation (the respondent). The applicant claims to have sustained an injury to her right shoulder, cervical spine and plantar fasciitis in both feet as a result of the nature and conditions of her employment.
On 2 April 2019, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the alleged injury in reliance upon an assessment of 22% whole person impairment…

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: [2021] NSWPIC 97
Decision Date: 27 April 2021

CaseChat Overview and Summary

The case of Carbery v Westpac Banking Corporation involved a claim for lump sum compensation under section 66 of the 1987 Workers Compensation Act. The applicant, Carbery, sought compensation for injuries to his right shoulder, cervical spine, and bilateral feet, which he claimed were due to the nature and conditions of his employment. Each injury was notified and the subject of compensation claims at different times. The respondent, Westpac Banking Corporation, disputed the claims, arguing that the applicant was barred from recovering compensation due to the provisions of section 261 of the 1998 Workers Compensation Act. The matter was heard in the relevant court, which had to determine whether each injury was discrete and if the applicant was precluded from receiving compensation for the injuries in question.

The legal issues before the court were whether the injuries to the right shoulder, cervical spine, and bilateral feet constituted discrete injuries under the Workers Compensation Act, and if the applicant was barred from recovering compensation for these injuries due to section 261 of the 1998 Act. The court had to consider the relevant statutory provisions and apply them to the facts of the case. Specifically, the court had to determine the deemed date of injury for the purposes of the claim and whether the applicant's rights were affected by the provisions of section 261(3) of the 1998 Act.

The court found that the applicant had sustained injuries to all body parts due to the nature and conditions of his employment. It held that the deemed date of injury for the purposes of the claim was the date of the claim for lump sum compensation, as per section 16(1)(a)(ii) of the 1987 Act. The court also found that section 261(3) of the 1998 Act applied, and that the matter should be remitted to the President for referral to a Medical Assessor. The court concluded that the applicant was not barred from recovering compensation for the injuries in question, and that the matter should be referred back for further assessment and determination of the appropriate compensation.

The final orders of the court were that the matter be remitted to the President for referral to a Medical Assessor for further assessment and determination of the appropriate compensation for the injuries sustained by the applicant. The court held that the applicant had sustained injuries to his right shoulder, cervical spine, and bilateral feet due to the nature and conditions of his employment, and that the deemed date of injury was the date of the claim for lump sum compensation. The court also found that section 261(3) of the 1998 Act applied, and that the applicant was not barred from recovering compensation for the injuries in question.

Orders