Elliot v Franklins Pty Limited

Case [2022] NSWPICPD 38

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Elliot v Franklins Pty Limited [2022] NSWPICPD 38

APPELLANT:

Shayne Elliot

RESPONDENT:

Franklins Pty Limited

INSURER:

AAI Ltd t/as GIO

FILE NUMBER:

A1-W4273/21

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

18 October 2022

ORDERS MADE ON APPEAL:

1.    I confirm Orders 1 and 2 of the Member’s Certificate of Determination dated 9 December 2021.

2.    Order 3 of the Member’s Certificate of Determination dated 9 December 2021 is revoked in so far as it relates to the lumbar spine injury of 8 January 2010.

3. In accordance with s 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998, upon redetermination, I enter an award in favour of the respondent in respect of the injury to the lumbar spine of 8 January 2010, and the claims for medical treatment pursuant to s 60 of the Workers Compensation Act 1987 and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

4. I confirm the Member’s decision in respect of the consequential conditions and enter an award for the respondent in respect of these injuries, and for the claims for medical treatment pursuant to s 60 of the Workers Compensation Act 1987 and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

CATCHWORDS:

WORKERS COMPENSATION – whether effects of an injury have ceased – whether an injury has resolved - onus of proof resides with the party asserting injury has ceased or resolved - Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 applied - University of New South Wales v Brooks [2014] NSWWCCPD 68 applied – member’s decision revoked on appeal – new decision made - section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr P Stockley, counsel

Garling & Co Lawyers

Respondent:

Mr S Harris, solicitor

Moray & Agnew Lawyers

DECISION UNDER APPEAL

MEMBER:

Mr C Burge

DATE OF Member’s DECISION:

9 December 2021

INTRODUCTION AND BACKGROUND

  1. Ms Shayne Elliott, the appellant, commenced employment with Franklins Pty Limited, the respondent, on 12 January 2009 as a contracts manager in the respondent’s property development department. The appellant remained in that employment until her employment was terminated on 11 October 2011.

  2. On 8 January 2010, whilst the appellant was undertaking a full site survey of one of the respondent’s supermarkets at Westleigh, the appellant developed significant pain in her lower back as a result of bending, twisting, lifting and other repetitive movements undertaken in the course of her site survey. Before commencing employment with the respondent, the appellant had a significant history of pain and disability in her lumbar spine requiring extensive medical treatment. There is no dispute about this prior history.

  3. In 2012, the appellant commenced proceedings in the then Workers Compensation Commission for this injury, claiming weekly compensation and medical expenses. The mechanism of injury was pleaded as extensive measuring…

Continue reading Elliot v Franklins Pty Limited

Sign in free to access the full text

Details
AGLC
Elliot v Franklins Pty Limited [2022] NSWPICPD 38
Case
[2022] NSWPICPD 38
Decision Date

CaseChat Overview and Summary

In the case of Elliot v Franklins Pty Limited, the appellant sought to appeal a decision of a Workers Compensation member concerning the cessation of her entitlement to compensation. The primary issue before the court was whether the effects of the appellant's work-related injury had ceased or resolved, as required by section 352(6A) of the Workplace Injury Management and Workers Compensation Act 1998. The appellant argued that the member had erred in concluding that her lumbar injury had resolved, despite pre-existing lumbar problems, and failed to adequately consider her credibility and evidence.

The court was tasked with determining whether the member's decision to revoke the appellant's compensation entitlement was legally sound. The court held that the onus of proving the cessation of injury effects lay with the party asserting it, in this case, the respondent. The court applied the principles from Commonwealth v Muratore and University of New South Wales v Brooks, emphasising the importance of proper credit findings and consideration of all relevant evidence. The court found that the member's decision lacked sufficient substantiation and failed to adequately address the appellant's pre-existing condition and its impact on the injury claim.

As a result of the court's findings, the member's decision was revoked, and a new decision was made in favour of the appellant. The court's detailed analysis underscored the necessity for thorough consideration of all evidence and appropriate credit findings in workers compensation cases.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As I have stated above, there was no dispute between the parties that the appellant had had long standing lumbar problems prior to commencing employment with the respondent. However, the appellant says as follows in terms of how the Member dealt with this issue:“Despite these uncontroversial features of the matter, the Member treated the evidence as though the significance of the existing condition had been denied by the appellant. For example, at [reasons] 38 he stated ‘notwithstanding her statement evidence to the contrary, in my view it is inconsistent with the prescription and administration of such strong pain killing medication to state the [appellant’s] low back symptoms immediately before the injury on 8 January 2010 were minor’.”[51] (appellant’s emphasis in bold, my emphasis in italics)[51] Appellant’s submissions, [6]. The appellant points to negative conclusions said to have been drawn by the Member about the appellant’s credit at reasons [38]–[39] without specifically so acknowledging. This, the appellant says, suggests that negative conclusions informed the Member’s decision making.[52] The appellant asserts that the credit finding was not available to be made, or in the alternative, having made such a finding, insufficient reasons were given to substantiate such a finding. [52] Appellant’s submissions, [10]. The starting point in evaluating Ground One is the appellant’s evidence. The appellant relied upon two statements, the first dated 5 February 2013[53] and the second dated 12 September 2020.[54] In her statement of 5 February 2013, the appellant sets out a number of formal matters before detailing her prior low back problems.[55] At paragraph [11] of her statement of 5 February 2013, the appellant says as follows:“I was able to work full time in my employment at Franklins Pty Limited as a Contracts Manager without difficulty and I remained so employed from January 2009 until the current incident on 8 January 2010.”[56] (emphasis added)[53] ARD, pp 1–5.[54] ARD, pp 6–23.[55] ARD, pp 1–2, [5]–[10].[56] ARD, p 2. In her second statement of 12 September 2020, the appellant says as follows at various points in her statement, which are relevant for consideration of this appeal point: “23. Although I experienced exacerbations of pain from time to time, more in the leg than the back, the treatment plan I had in place allowed me to get on with my life, work in demanding roles and in fact complete a University degree.…27. I was able to work full time in my employment at Franklins Pty Limited as a Contracts Manager without difficulty and I remained so employed from January 2009 until the current incident on 8 January 2010.30. I conducted these duties at the Pennant Hills store on 6 January 2010 and then on 8 January 2010 at the Westleigh store. The duties essentially involved surveying/measuring the whole stores.31. In order to do so, I was required to stretch, bend, twist and move stock as required in order to obtain various measurements. As a result of the bending, twisting, lifting and other repetitive movements, I developed significant pain in my lower back on the left-hand side above the rear of my hip bone shooting upward.32. In particular, on the second day I worked for two (2) hours at my usual office, commencing at 5:45am and then I went out to do measurements of Westleigh supermarket around 9:30am.33. I recall that at the time of the injury I had completed around two (2) to three (3) hours of measuring up and during this time I needed to move around a lot of stock.34. After doing two (2) to three (3) hours of measuring, I recall experiencing a sharp stabbing sensation in an upward direction when I stepped forward with my left leg. When I attempted to start walking the pain was severe and I walked with a limp due to the difficulty of walking.35. The pain was so severe that it caused me to call out in pain. I reported the incident to a work colleague.36. I tried to finish my shift but I was unable to do so. I completed an incident report and ceased duties that day.37. I lodged a Workers Compensation Claim in January 2020 and initially the claim was accepted.…42. In my view at the time of my injury on 8 January 2010 whilst I did have pain in particular to my left thigh and some low back pain it did not prevent me from completing a degree of Bachelor Economics and was managed with medication.43. The pain in my lumbar spine and the radiation of pain in my legs was much more severe post this accident on 8 January 2010.44. I have also noticed following the injury on 8 January 2010 the onset of back and neck pain, with secondary pain in both shoulders and arms, as well as pain to my knees and feet.45. I believe these to be new injuries as a consequence of either the work that I was undertaking on 8 January 2010 and secondary injuries consequent upon the injury I sustained to my neck and back. I did not have any similar pain or injuries to these parts of my body before 8 January 2010.…242. I have not worked since my last shift at Franklins.243. The injury which occurred on 8 January 2010 has completely changed my life. I have been unable to work since, I am monopolised by medical requirements, Doctors visits, pain and restriction, ongoing procedures and managing my significant injuries.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.