Crellin v Woolworths Group Limited - [2023] NSWPIC 299

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Crellin v Woolworths Group Limited & Ors [2023] NSWPIC 299
APPLICANT:	Patricia Crellin
FIRST RESPONDENT:	Woolworths Group Ltd
SECOND RESPONDENT:	EG Fuelco (Australia) Ltd
Member:	Cameron Burge
DATE OF DECISION:	26 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses; applicant suffered injuries to her cervical spine in 2011 with first respondent and in 2020 with second respondent; no issue the proposed cervical fusion surgery is a medical necessary, or as to the degree of the applicant’s claimed incapacity, or her preinjury earnings; dispute as to which injury has caused the applicant’s current incapacity for employment and the requirement for future surgery, and if both to what extent; Held – the need for the proposed cervical fusion was brought about as a result of both injuries, apportioned at 50% for each respondent; the applicant’s claimed incapacity for employment is a result of both injuries, apportioned at 50% each; first and second respondents ordered to each pay half of the costs of and incidental to the proposed cervical spine surgery; first and second respondent ordered to each pay half of the applicant’s weekly compensation as claimed in the Application.
determinations made:

The Commission determines:

The applicant suffered an injury to her cervical spine in the course of her employment with the first respondent on 1 August 2011.
The applicant suffered an injury to her cervical spine in the course of her employment with the second respondent on 21 April 2020.
As a result of the applicant’s injuries, she suffered partial incapacity for employment from 19 September 2022 to 12 February 2023; and from 13 February 2023 to date and continuing, suffers a total incapacity for employment.
The applicant’s pre-injury average weekly earnings were $1,306 per week.
The applicant’s incapacity referred to above is attributable equally between the first and second injuries.

The first and second respondents are to pay the applicant weekly compensation as follows, such amounts to be divided equally between them:
(a) Pursuant to s 36 of the Workers Compensation Act 1987 at the following rates:
(i)from 19 September 2022 to 25 September 2022 - $427 per week;
(ii)from 26 September 2022 to 2 October 2022 - $598 per week;
(iii)from 3 October 2022 to 9 October 2022 – $852 per week;
(iv)from 10 October 2022 to 16 October 2022 – $689 per week;
(v)from 17 October 2022 to 23 October 2022 – $812 per week;
(vi)from 24 October 2022 to 30 October 2022 – $593 per week;
(vii)from 31 October 2022 to 6 November 2022 – $377 per week;
(viii)from 7 November 2022 to 13 November 2022 – $577 per week;
(ix)from 14 November 2022 to 20 November 2022 – $542 per week;
(x)from 21 November 2022 to 27 November 2022 – $906 per week;
(xi)from 28 November 2022 to 4 December 2022 – $1,100 per week;
(xii)from 5 December 2022 to 11 December 2022 – $506 per week, and
(xiii)from 12 December 2022 to 18 December 2022…

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 299
Decision Date: 26 June 2023

CaseChat Overview and Summary

In the case of Crellin v Woolworths Group Limited, the applicant, Crellin, sought weekly benefits and medical expenses from her former employers, Woolworths Group Limited and another party, following injuries to her cervical spine. The injuries in question occurred in two separate incidents: one in 2011 with Woolworths Group Limited and another in 2020 with the other party. The primary dispute in the case revolved around determining the source of Crellin's current incapacity for work and the necessity for future cervical fusion surgery, as well as apportioning liability for the surgery and ongoing compensation payments between the two respondents.

The legal issues before the court included establishing whether the proposed cervical fusion surgery was medically necessary, assessing the degree of Crellin’s claimed incapacity, and determining her pre-injury earnings, which were not contested. The key issue was to ascertain which of the two injuries caused Crellin's current incapacity and the requirement for future surgery, and if both injuries contributed, to what extent each contributed. The court had to determine the apportionment of liability for the surgery and ongoing compensation payments between Woolworths Group Limited and the other party.

The court found that the need for the proposed cervical fusion surgery was a result of both injuries, with each party being equally responsible, thus apportioning 50% liability to each respondent. Similarly, the court determined that Crellin's claimed incapacity for employment was also due to both injuries, again apportioning 50% liability to each party. Consequently, Woolworths Group Limited and the other party were ordered to each pay half of the costs of the proposed cervical spine surgery and half of the applicant’s weekly compensation as claimed in the application. This decision ensures that both parties share the financial responsibility for the treatment and ongoing compensation in proportion to their respective contributions to Crellin’s current condition.

Orders