Dent v Coles Group Supply Chain Pty Ltd - [2024] NSWPIC 68

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPIC 68
APPLICANT:	Dean Jonathan Dent
RESPONDENT:	Coles Group Supply Chain Pty Limited
MEMBER:	Paul Sweeney
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by worker for permanent impairment compensation pursuant to section 66 alleging injury to both shoulders; employer accepts liability in respect of left shoulder but disputes that worker suffered injury or a consequential medical condition of the right shoulder; Coote v Kelly and Kooragang Cement Pty Limited v Bates considered; relevance of absence of contemporaneous complaint when injury occurred many years before claim; finding that worker had not established either injury to or a consequential medical condition the right shoulder; Held –quantum of impairment of right shoulder referred to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has not established that he suffered injury to his right shoulder or a consequential medical condition of his right shoulder as a result of employment injury. 2. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment as a result of injury to the applicant’s left upper extremity (shoulder) which is deemed to have occurred on 5 May 2023 (date of claim) as a result of his employment with the respondent on and before 22 March 2005. 3. Medical Assessor to have access to the Application to Resolve a Dispute, the Reply, the Application to Admit Late Documents dated 22 January 2024 and the documents attached to each.

STATEMENT OF REASONS

BACKGROUND

Dean Jonathan Dent (the applicant) was diagnosed with severe glenohumeral joint arthritis of the right shoulder in 2018. He underwent a right total shoulder replacement at Gosford Hospital on 29 January 2020. He has made an incomplete recovery from that surgery.
Between 11 November 1999 and 22 March 2005, the applicant was employed by Coles Group Supply Chain Pty Limited (the respondent) as an order selector. This was undoubtedly arduous physical work.
During his employment, the applicant suffered injuries to his left shoulder for which he claimed compensation. He also alleges that he suffered an injury to his right shoulder in the course of his employment which caused or materially aggravated osteoarthritis in his right shoulder and the need for surgery in 2020. Alternatively, he alleges that the medical condition of his right shoulder resulted from the employment injuries to his left shoulder. He alleges there was over use of his right arm as a result of restriction in left arm movement caused by his employment injuries.
The respondent accepts that the applicant suffered injury to the left shoulder during the course of his employment. It disputes, however, that it is liable to pay compensation in respect of the injury/medical condition of the right shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

When the matter came on for a conciliation conference and arbitration hearing on 1 February 2024, Mr Tanner, of counsel…

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 68
Decision Date: 20 February 2024

CaseChat Overview and Summary

In this case, the applicant, Dent, filed a claim for permanent impairment compensation against Coles Group Supply Chain Pty Ltd, the respondent, under the Workers Compensation Act 1987. The dispute centered on whether Dent suffered injuries to both shoulders as a result of his employment, and if so, to what extent he was entitled to compensation for the impairment of each shoulder. The matter was heard in the Industrial Court of Queensland.

The central legal issue before the court was whether Dent had established that he had suffered an injury to, or a consequential medical condition of, his right shoulder. The respondent accepted that Dent had suffered an injury to his left shoulder but disputed any injury or consequential medical condition to his right shoulder. The court had to determine if the absence of a contemporaneous complaint about the right shoulder injury, when the incident occurred many years prior to the claim, was a significant factor in assessing the credibility of the applicant’s claims. The court also considered relevant legal precedents such as Coote v Kelly and Kooragang Cement Pty Limited v Bates in reaching its decision.

The court found that Dent had not established that he suffered an injury to, or a consequential medical condition of, his right shoulder. The absence of a contemporaneous complaint, given the significant passage of time since the alleged incident, was considered a pertinent factor in the assessment of the credibility of the applicant’s claims. The court referred the quantum of impairment of the right shoulder to a Medical Assessor for further evaluation.

Orders