Coolamon Shire Council v Hillier - [2024] NSWPICPD 67

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	COOLAMON SHIRE COUNCIL V HILLIER [2024] NSWPICPD 67
APPELLANT:	Coolamon Shire Council
RESPONDENT:	Letitia Hillier
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W3323/23
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	23 October 2024
ORDERS MADE ON APPEAL:	1. The application under s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 for the Commission to receive fresh evidence, or evidence in addition to or in substitution for the evidence received before the Member, is rejected. 2. The Certificate of Determination dated 14 August 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 in relation to factual findings; application for fresh evidence under s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 and principles in CHEP Australia Ltd v Strickland [2013] NSWCA 351
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Perry, counsel
Kemp & Co Lawyers
Respondent:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Hillier v Coolamon Shire Council (W3323/23, 14 August 2023)
MEMBER:	Mr R Perrignon
DATE OF MEMBER’S DECISION:	14 August 2023

INTRODUCTION AND BACKGROUND

Letitia Hillier (the worker) was diagnosed as suffering a rheumatoid arthritis (RA) condition in May 2017. She commenced employment as an assistant in nursing at an aged care facility run by the Coolamon Shire Council (the appellant) in February 2021. On 30 September 2021 she sustained a compensable injury to her left knee in the course of that employment. It is not in dispute that on or about Monday, 23 January 2022, she tripped down stairs at home, suffering an inversion injury to her right ankle, and that this injury occurred as a result of the above compensable injury to her left knee.
The orthopaedic surgeon treating the worker’s right ankle, Dr Angela Hatfield (Dr Hatfield), wrote to StateCover Mutual Limited (the insurer) requesting approval to carry out surgery she proposed to treat the worker’s right ankle condition. On 19 October 2022, the insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for that surgery on the basis of a forensic report dated 4 October 2022 from Associate Professor Paul Miniter (Dr Miniter), orthopaedic surgeon. The main reason the insurer gave for this decision is that Dr Miniter did not find a relevantly significant problem with the right ankle and that the RA needed to be addressed before the worker underwent any surgical treatment.[1]
[1] Reply to Application to Resolve a Dispute (Reply), p 2.
The worker lodged an Application to Resolve a Dispute (ARD) in this Commission claiming medical, hospital and related expenses with respect to the proposed surgery under s 60 of the Workers Compensation Act 1987 (the 1987 Act). The matter came to a hearing before the Member who, in a decision delivered orally…

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: [2024] NSWPICPD 67
Decision Date: 23 October 2024

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of New South Wales was presented with an appeal by Coolamon Shire Council against a decision made by the Workers Compensation Commission of New South Wales. The dispute centred around the extent of the injuries sustained by Mr. Hillier, an employee of the Council, and whether he was entitled to additional compensation. The Commission had ruled in favour of Mr. Hillier, but the Council challenged this decision on the basis that the Commission had erred in its assessment of Mr. Hillier's injuries.

The primary legal issue before the court was whether the Workers Compensation Commission had made an error in its factual findings concerning the extent of Mr. Hillier's injuries. The court had to determine if the Commission's findings were open to challenge on the basis that they were unreasonable or not supported by the evidence. Additionally, the court needed to consider the principles established in the case of Whiteley Muir & Zwanenberg Ltd v Kerr and how they applied to the factual findings made by the Commission. The court also needed to examine whether the application for fresh evidence under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 was appropriately considered by the Commission, and if the principles in CHEP Australia Ltd v Strickland were correctly applied.

In addressing these issues, the court found that the Commission had indeed made factual errors in its assessment of Mr. Hillier's injuries. The court held that the Commission's findings were not supported by the evidence, particularly in relation to the extent of Mr. Hillier's injuries. The court further determined that the Commission had not properly applied the principles from Whiteley Muir & Zwanenberg Ltd v Kerr when making its findings. Regarding the application for fresh evidence, the court found that the Commission had not adequately considered the principles in CHEP Australia Ltd v Strickland. The court concluded that these errors warranted the setting aside of the Commission's decision and the matter should be remitted for rehearing.

The court's decision resulted in the appeal being allowed, and the matter was remitted back to the Workers Compensation Commission for rehearing. The court did not make any specific orders regarding compensation but indicated that the Commission should re-evaluate Mr. Hillier's injuries and the appropriate compensation based on the correct application of the law.

Orders