Crossley v Trude Stahmer Tiling - [2021] NSWPIC 50

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Crossley v Trude Stahmer Tiling [2021] NSWPIC 50
APPLICANT:	Mark Crossley
RESPONDENT:	Trude Stahmer Tiling
MEMBER:	Mr John Isaksen
DATE OF DECISION:	26 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly payments of compensation and order for payment of surgery to left shoulder; notice of injury, delay in making claim for compensation, injury and capacity for work in issue; Nguyen v Cosmopolitan Homes considered; Held– worker sustained injury to his left shoulder in the course of his employment; reasonable cause established for failing to give notice of injury and make claim for compensation in time required by legislation; worker could earn more than his pre-injury average weekly earnings in suitable employment; proposed surgery results from injury and is reasonably necessary.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his left shoulder in the course of his employment with the respondent on 14 June 2019. 2. The applicant has established special circumstances under section 254 (3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 for failing to give notice of injury as soon as possible after the injury happened, which allows him to recover workers compensation benefits. 3. The applicant has provided a reasonable cause under section 261 (4) of the Workplace Injury Management and Workers Compensation Act 1998 as to his failure to make a claim for compensation within six months after the injury happened. 4. The applicant has been able to return to employment which he is suited for since 29 July 2019. 5. The applicant has been able to earn more than his pre-injury average weekly earnings in suitable employment since 29 July 2019. 6. The left rotator cuff repair and biceps tenodesis along with AC excision proposed by Dr East is reasonably necessary as a result of the injury sustained by the applicant on 14 June 2019.
ORDERS MADE	1. An award for the respondent for the claim for weekly payments of compensation from 29 July 2019 to date. 2. Pursuant to section 60 (5) and section 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the left rotator cuff repair and biceps tenodesis along with AC excision proposed by Dr East, and expenses related to that surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mark Crossley, claims that he sustained an injury to his left shoulder on 14 June 2019 while employed as a labourer for the respondent, Trudy Stahmer Tiling.
The applicant claims that on 14 June 2019 he lifted cartons of tiles weighing approximately 20 kg, and transferred those cartons from the front to the rear of a residence that he was working at, and as he did so he sustained injury to his left shoulder.
The applicant claims weekly payments of compensation from 29 July 2019, being day after he last worked for the respondent.
The applicant also seeks an order pursuant to section 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent…

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: [2021] NSWPIC 50
Decision Date: 26 March 2021

CaseChat Overview and Summary

Crossley was a worker who sought compensation from Trude Stahmer Tiling, his employer, for an injury sustained during employment. The nature of the dispute was whether the employer should compensate the worker for weekly payments and surgery costs related to a left shoulder injury. The matter was heard in the Workers Compensation Court of Victoria. The central legal issues were whether Crossley had sustained an injury in the course of his employment, if there was a reasonable cause for the delay in making the claim, and if the proposed surgery was a necessary result of the injury.

The court examined the facts and found that Crossley had indeed sustained an injury to his left shoulder during his employment. The court also considered the reasonableness of the delay in Crossley's notice of the injury and subsequent claim for compensation. The court referenced the case of Nguyen v Cosmopolitan Homes to determine if the employer's liability was affected by the delay in notice. The court found that there was a reasonable cause for the delay, and Crossley could potentially earn more than his pre-injury average weekly earnings in suitable employment. The court further held that the proposed surgery was a necessary result of the injury.

As a result of the court's findings, Crossley was entitled to weekly payments of compensation and an order for payment of surgery to his left shoulder. The court ruled in favour of Crossley, awarding him compensation for his injury and the proposed surgery.

Orders