Connell v Thorndale Foundation Ltd - [2023] NSWPIC 536

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Connell v Thorndale Foundation Ltd [2023] NSWPIC 536
APPLICANT:	Kay Connell
RESPONDENT:	Thorndale Foundation Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits for two closed periods; medical expenses; and permanent impairment compensation; accepted claim for injury to the right shoulder; respondent disputed that the applicant had sustained bilateral carpal tunnel syndrome, injury to the left shoulder, or injury to the cervical spine; parties agreed on applicant’s pre-injury average weekly earnings, and that claim for weekly benefits was to be determined before referral to a Medical Assessor; consideration of Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors, AV v AW, Alto Ford v Antaw, Stone v Stannard Brothers Launch Services Pty Ltd, Diab v NRMA Ltd, and Mason v Demasi; Held – applicant sustained bilateral carpal tunnel syndrome, being a disease injury to which employment was the main contributing factor; award for the respondent for injury to the left shoulder and cervical spine; award for the applicant for weekly benefits during periods when she had no current work capacity following carpal tunnel decompression surgery on each wrist; award for the applicant of medical expenses claimed, excluding treatment of cervical spine; matter remitted to President for referral to Medical Assessor for assessment of impairment as a result of injury to the right upper extremity and left upper extremity.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent in respect of the claim for injury to the cervical spine and left shoulder. 2. There is an award for the applicant of weekly benefits as follows: (a) $1,008.03 per week from 24 January 2012 to 14 April 2012, pursuant to s 36 of the Workers Compensation Act 1987; (b) $1,008.03 per week from 16 August 2016 to 27 August 2016, pursuant to s 36 of the Workers Compensation Act 1987, and (c) $848.86 per week from 28 August 2016 to 31 October 2016, pursuant to s 37 of the Workers Compensation Act 1987. 3. There is an award for the applicant in the amount of $3,617.45, pursuant to s 60 of the Workers Compensation Act 1987, excluding any amount in respect of treatment of her cervical spine. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 as follows: (a) Date of injury: 11 October 2020 (deemed) – disease. (b) Body systems/parts: (i) right upper extremity (right shoulder; right hand; right wrist), and (ii) left upper extremity (left hand; left wrist). (c) Method of assessment: whole person impairment. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. 6. The parties have liberty to apply with respect to the award for weekly benefits.

STATEMENT OF REASONS

BACKGROUND

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: [2023] NSWPIC 536
Decision Date: 13 October 2023

CaseChat Overview and Summary

Connell commenced proceedings against Thorndale Foundation Ltd in the Workers Compensation Commission of New South Wales, seeking compensation for various injuries sustained during her employment. The primary dispute centred on whether the applicant had sustained bilateral carpal tunnel syndrome, an injury to her left shoulder, and an injury to her cervical spine, in addition to the accepted injury to her right shoulder. The respondent contested these claims, arguing that the applicant's injuries were either unrelated to her employment or did not exist at all.

The court was required to determine the validity of the applicant's claims for bilateral carpal tunnel syndrome, an injury to her left shoulder, and an injury to her cervical spine, and whether these conditions were related to her employment. The court also needed to decide on the applicant's entitlement to weekly benefits, medical expenses, and permanent impairment compensation. The case involved the interpretation of relevant case law, such as Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors, AV v AW, Alto Ford v Antaw, Stone v Stannard Brothers Launch Services Pty Ltd, Diab v NRMA Ltd, and Mason v Demasi, to ascertain the extent of the applicant's injuries and their connection to her employment.

The court found that the applicant had indeed sustained bilateral carpal tunnel syndrome, which was a disease injury to which her employment was the main contributing factor. However, the court dismissed her claims for injury to her left shoulder and cervical spine. Consequently, the applicant was awarded weekly benefits during periods when she had no current work capacity following carpal tunnel decompression surgery on each wrist. She was also awarded the medical expenses claimed, excluding treatment of the cervical spine. The matter was remitted to the President for referral to a Medical Assessor to assess the impairment resulting from the injuries to the right and left upper extremities.

Orders