Chea v Woolworths Group Limited - [2022] NSWPIC 26

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chea v Woolworths Group Limited [2022] NSWPIC 26
APPLICANT:	Khieng Chea
RESPONDENT:	Woolworths Group Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	20 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Payment of compensation after the second entitlement period; insurer had not assessed the worker under section 38; jurisdiction of the Commission; Lee v Bunnings, Sabanayagam v St George Bank, Hochbaum v RSM Building Services Pty Ltd, Darcy v P &T Formwork and Welding Pty Ltd and Roberts v University of Sydney considered; Held- the Commission has jurisdiction to determine the dispute; award for the applicant pursuant to section 38(2).
DETERMINATIONS MADE:	1. The Application to Resolve a Dispute is amended to claim: a. weekly compensation from 17 May 2021, and b. section 60 expenses. 2. Pursuant to s 38(2) of the Workers Compensation Act 1987, the respondent is to pay the applicant weekly compensation of $1,142.52 per week from 17 May 2021 to date and continuing. 3. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s whole person impairment as a result of: (a) injury to his lumbar spine on 12 November 2018, and (b) consequential condition in his right lower extremity (hip). 4. The documents to be sent to the Medical Assessor are: (a) Application to Resolve a Dispute; (b) Reply, and (c) Mr Chea’s Application to Admit Late Documents dated 28 October 2021. 5. The respondent is to pay the applicant’s s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

Kheing Chea was employed by Woolworths Group Limited as a storeman in a distribution centre. He suffered an injury on 12 November 2018 when he was standing on a ride on pallet jack which was hit by a forklift. Mr Chea injured his lumbar spine. As a result of the injury, he suffered a secondary psychological condition.
Woolworths accepted liability for the back injury and psychological condition and Mr Chea was paid weekly compensation until 16 May 2021, slightly more than 130 weeks after the injury. Payments ceased on that day based on a report from Dr Rimmer and Woolworths said that Mr Chea did not suffer any incapacity for work or permanent impairment.
Mr Chea claims that he suffered a consequential condition in his right hip. Woolworths disputes that Mr Chea suffered an injury to his right hip.
Mr Chea claims weekly compensation, s 60 expenses and permanent impairment compensation. The main dispute between the parties is whether the Commission has jurisdiction to award Mr Chea compensation after the second entitlement period as defined in s 32A of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference hearing on 2 December 2021. Ms Goodman of counsel appeared for Mr Chea and Mr Beran of counsel appeared for Woolworths.
Ms Goodman sought to amend the Application to Resolve a Dispute (ARD) to clarify the date from which weekly payments were sought to 17 May 2021 and…

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 26
Decision Date: 20 January 2022

CaseChat Overview and Summary

The case of Chea v Woolworths Group Limited involved an employee who sought workers compensation from their employer, Woolworths Group Limited, after the expiration of the second entitlement period. The dispute was brought before the Commission to determine whether the Commission had the jurisdiction to assess the claim, and if so, whether the applicant was entitled to compensation. The legal issues at hand revolved around the interpretation of section 38 of the relevant legislation and the applicability of prior case law, including Lee v Bunnings, Sabanayagam v St George Bank, Hochbaum v RSM Building Services Pty Ltd, Darcy v P &T Formwork and Welding Pty Ltd, and Roberts v University of Sydney.

The court examined whether the insurer's failure to assess the worker under section 38 impacted the Commission's jurisdiction over the matter. It considered the principles established in previous cases that the Commission has jurisdiction to determine disputes where the insurer has not assessed the worker, even after the statutory period has expired. The court noted that the primary consideration was whether the Commission could make a determination that would result in a payment of compensation to the applicant. If such a determination could be made, the court held that it had the necessary jurisdiction.

Ultimately, the court found that the Commission did indeed have the jurisdiction to determine the dispute, as the insurer had not assessed the worker under section 38. By drawing on the precedents set in earlier cases, the court concluded that the Commission was empowered to make an award for the applicant, in line with section 38(2) of the legislation. The court's reasoning rested on the principle that the insurer's failure to assess the worker did not deprive the Commission of its jurisdiction, provided that a valid determination could be made that would result in the payment of compensation.

The final orders of the court were that the Commission had jurisdiction to determine the dispute and that an award should be made for the applicant pursuant to section 38(2). This outcome aligned with the established legal principles that the court had considered and provided clarity for the parties involved in the dispute.

Orders