Corneliusen v Target Australia Pty Ltd - [2024] NSWPIC 191

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Corneliusen v Target Australia Pty Ltd [2024] NSWPIC 191
APPLICANT:	Cindy Lee Corneliusen
RESPONDENT:	Target Australia Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	17 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of surgery on the applicant worker’s left shoulder as a result of an undisputed injury to the right shoulder and undisputed condition in the left shoulder consequent upon the right shoulder injury; the respondent employer declined liability relying upon section 59A(2)(ii), contending that more than two years had elapsed since the last receipt of weekly payments by the applicant; that section 59A(3) did not apply as the comments thereon by Roche DP in Flying Solo Properties Pty Ltd t/as Artee Signs v Collett were merely obiter dicta and had no application to the current proceedings; and that in any event, the surgery proposed was not reasonably necessary as a result of injury to the right shoulder; Held – that the applicant was precluded by section 59A(2)(ii) from seeking an order for the cost of surgery; that the comments of Roche DP in Flying Solo were not obiter dicta and were relevant to the current proceedings; that the section 59A(3) applied, and that the surgery proposed on the applicant’s left shoulder was reasonably necessary as a result of injury to the right shoulder.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery as proposed by Dr Howard on the applicant’s left shoulder, that is arthroscopic rotator cuff repair, is reasonably necessary as a result of injury to the right shoulder on 1 February 2017.

STATEMENT OF REASONS

BACKGROUND

Cindy Lee Corneliusen (the applicant/Ms Corneliusen) seeks compensation for medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of a condition in her left shoulder consequent upon injury to the right shoulder on 1 February 2017 arising out of or in the course of her employment as a part time Customer Service Assistant by Target Australia Pty Ltd (the respondent/Target).
The applicant’s duties included customer service, operating registers, working with stock, stocktaking, splitting down pallets, working in the parcel pick up, cleaning and tidying of shelving and stock, and moving around cages containing stock.
On 1 February 2017 the applicant experienced fatigue and soreness in her right shoulder as a result of carrying out the splitting of pallet duties. This was reported to her manager.
The applicant came under the care of general practitioners at the Leeton Medical Centre and was referred to Dr Matthew Howard, orthopaedic surgeon, who arranged an MRI scan of the right shoulder. Dr Howard requested approval from the respondent’s insurer, Westfarmers Retail Holdings Pty Ltd (Westfarmers/the insurer) to cover the cost of an arthroscopy and repair of the shoulder which was approved, and carried out on 24 July 2017.
In late 2017 the applicant returned to work on light duties pursuant to a return-to-work plan of a rehabilitation provider, and commenced full…

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] NSWPIC 191
Decision Date: 17 April 2024

CaseChat Overview and Summary

The case of Corneliusen v Target Australia Pty Ltd involved the applicant, Corneliusen, seeking compensation from the respondent, Target Australia, for the cost of surgery on his left shoulder. The injury to the right shoulder was undisputed, as was the condition in the left shoulder that arose from the right shoulder injury. The employer, Target Australia, declined liability for the costs of the surgery, contending that more than two years had passed since the last receipt of weekly payments by the applicant. The employer argued that section 59A(2)(ii) of the Workers Compensation Act 1987 precluded the applicant from claiming the costs of the surgery. The employer further contended that section 59A(3) did not apply to the current proceedings because the comments made by Roche DP in Flying Solo Properties Pty Ltd t/as Artee Signs v Collett were merely obiter dicta and had no relevance. Finally, the employer claimed that the proposed surgery was not reasonably necessary as a result of the injury to the right shoulder.

The legal issues before the court were whether section 59A(2)(ii) of the Workers Compensation Act 1987 precluded the applicant from seeking compensation for the cost of the surgery, whether the comments made by Roche DP in Flying Solo were relevant to the current proceedings, and whether the proposed surgery on the applicant’s left shoulder was reasonably necessary as a result of the injury to the right shoulder. The court found that the applicant was precluded by section 59A(2)(ii) from seeking an order for the cost of the surgery. The court also found that the comments made by Roche DP in Flying Solo were not obiter dicta and were relevant to the current proceedings. Finally, the court held that section 59A(3) applied and that the proposed surgery on the applicant’s left shoulder was reasonably necessary as a result of the injury to the right shoulder.

The court's reasoning was that section 59A(2)(ii) of the Workers Compensation Act 1987 applied to preclude the applicant from seeking compensation for the cost of the surgery. The court found that the comments made by Roche DP in Flying Solo were not merely obiter dicta and were relevant to the current proceedings. The court held that section 59A(3) applied and that the proposed surgery on the applicant’s left shoulder was reasonably necessary as a result of the injury to the right shoulder. The court found that the employer was not liable for the costs of the surgery.

No specific orders were made in the case. However, the court's decision meant that the applicant was not entitled to compensation for the cost of the surgery. The employer was not liable for the costs of the surgery.

Orders