Colless v Woolworths Group Limited - [2022] NSWPIC 326

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Colless v Woolworths Group Limited [2022] NSWPIC 326
APPLICANT:	Andrew Colless
RESPONDENT:	Woolworths Group Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	24 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment compensation; whether applicant suffered bilateral shoulder injuries in addition to accepted thoracic spine injury; Held – on balance the medical evidence discloses pathological change in the applicant’s left shoulder sufficient to satisfy the requirements of section 4 of the Workers Compensation Act 1987 (1987 Act); Castro v State Transit Authority (NSW) and Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear discussed and applied; the initial emphasis of the applicant’s treating practitioners on the thoracic spine injury does not preclude the existence of injury to other body parts; the existence of such injury is a matter to be determined after consideration of the totality of the lay and medical evidence; on balance the applicant has discharged the onus of proof in establishing a left shoulder injury; however the applicant has not discharged the onus of proof in establishing injury to the right shoulder; thoracic spine and left shoulder claims remitted to the President for referral for medical assessment; award for the respondent on the claim for injury to the right shoulder.
DETERMINATIONS MADE:	1. The applicant suffered an injury in the course of his employment with the respondent to his thoracic spine and left upper extremity (shoulder) to which his employment was a substantial contributing factor. 2. Award for the respondent on the claim for injury to the right upper extremity. 3. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 15 July 2018. Body systems referred: thoracic spine and left upper extremity (shoulder). Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and statement of reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

On 15 July 2018, Andrew Colless (the applicant) was in the course of his employment with Woolworths Group Ltd (the respondent) when he was opening a large roller door at the back of a truck in order to unload stock. As the applicant reached above shoulder height to open the door, it jammed and as he pushed harder on it to force it open, he felt a sharp pain in his mid-back and shoulders.
The applicant reported the incident to his manager, however, he continued to work for some time and eventually left work early that day.
The applicant then consulted his general practitioner and was referred for further treatment. He brings these proceedings seeking payment of permanent impairment compensation in respect of injuries to his thoracic spine (accepted) and bilateral upper limbs (shoulders) (disputed).
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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 Colless v Woolworths Group Limited

Details

AGLC: Colless v Woolworths Group Limited [2022] NSWPIC 326
Case: [2022] NSWPIC 326
Decision Date: 24 June 2022

CaseChat Overview and Summary

The applicant, Colless, brought proceedings against Woolworths Group Limited seeking compensation for injuries sustained during employment. The dispute centred on whether the applicant suffered bilateral shoulder injuries in addition to an accepted thoracic spine injury. The case was heard in the Workers Compensation Authority of New South Wales. The primary legal issue was whether the applicant had sustained injuries to both shoulders, given the initial emphasis on the thoracic spine injury by the treating practitioners. The court needed to determine whether the applicant had discharged the onus of proof for the shoulder injuries under section 4 of the Workers Compensation Act 1987.

The court considered the totality of the evidence presented, including both lay and medical testimony, to ascertain whether there was pathological change in the applicant’s shoulders. The court found that while the applicant had discharged the onus of proof for a left shoulder injury, they had not done so for the right shoulder. The court relied on Castro v State Transit Authority (NSW) and Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear to conclude that the initial focus on the thoracic spine injury did not preclude the existence of other injuries. The court emphasised that the existence of such injuries is a matter to be determined comprehensively after considering all the evidence. Therefore, the claims concerning the thoracic spine and the left shoulder were remitted to the President for referral for medical assessment, while an award was made for the respondent on the claim for injury to the right shoulder.

Orders