Fletcher v GrainCorp Operations Limited - [2023] NSWPIC 67

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Fletcher v GrainCorp Operations Limited & Ors [2023] NSWPIC 67
APPLICANT:	David Fletcher
FIRST RESPONDENT:	GrainCorp Operations Limited
SECOND RESPONDENT:	HealthShare NSW
Member:	Cameron Burge
DATE OF DECISION:	21 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment compensation, weekly payments and medical expenses in respect of a frank injury to the neck and shoulders and an injury by way of aggravation of a disease process to the cervical spine and upper extremities (shoulders) due to nature and conditions of employment with both respondents; the respondents each deny liability, the first respondent denied there was any injury caused by the nature and conditions of employment; said that even if there was such an injury the second respondent would be liable as the last employer whose employment was in the nature of which alleged caused any aggravation; disputed the applicant’s claimed incapacity and also alleged the applicant’s claim was out of time by virtue of the operation of sections 254 and 261; the second respondent denied the nature and conditions of the applicant’s employment with it relevantly caused any aggravation to a disease process, disputed the claim of incapacity and also relied on the time limit provisions in section 254 and 261; Held – the applicant suffered an injury to his neck and shoulders in the course of his employment with the first respondent and by way of aggravation of a disease process to his cervical spine and upper extremities (shoulders) with a deemed date of injury of 20 November 2009 with the second respondent; the applicant’s claim against the first respondent in the interests of EML and the second respondent is not precluded from being made by virtue of the operation of sections 254 and 261; remit the claim for permanent impairment compensation arising from both injuries to the President of the Personal Injury Commission for referral to a Medical Assessor; the claims for medical expenses and weekly compensation are adjourned for further telephone conference after the issuing of any Medical Assessment Certificate regarding the claim for permanent impairment compensation pursuant to Jaffarie v Quality Castings Pty Ltd.
determinations made:

The Commission determines:

The applicant suffered an injury to his neck and both shoulders in the course of his employment with the first respondent on 14 November 1996.
The applicant suffered an injury in the course of his employment with the second respondent in the nature of an aggravation of a disease process to his left upper extremity (shoulder) and right upper extremity (shoulder) with a deemed date of injury of 20 November 2009.
Award for the first respondent (in the interests of EML) on the claim for injury alleged to have arisen as a result of the nature and conditions of employment.
Award for the second respondent on the claim for injury by way of aggravation to the cervical spine.
The claim for permanent impairment compensation is remitted to the President for…

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.

Continue reading Fletcher v GrainCorp Operations Limited

Details

AGLC: Fletcher v GrainCorp Operations Limited [2023] NSWPIC 67
Case: [2023] NSWPIC 67
Decision Date: 21 February 2023

CaseChat Overview and Summary

In the case of Fletcher v GrainCorp Operations Limited, the applicant, Mr. Fletcher, sought compensation for injuries he claimed to have sustained during his employment with two respondents. He alleged that he suffered a frank injury to his neck and shoulders and an aggravation of a pre-existing condition in his cervical spine and upper extremities due to the nature and conditions of his employment. Both respondents denied liability, with the first respondent arguing that the second respondent, being the last employer in the nature of the alleged causative employment, should be liable. They also disputed Mr. Fletcher's claimed incapacity and alleged his claim was out of time due to sections 254 and 261 of the relevant Act.

The legal issues the court had to decide were whether Mr. Fletcher's injuries were caused by the nature and conditions of his employment, who among the respondents was liable if so, and whether his claim was within the time limits specified in sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998. Additionally, the court needed to determine the validity of the respondents' claims regarding the applicant's incapacity and the timeliness of the claim.

The court found that Mr. Fletcher had indeed suffered an injury to his neck and shoulders during his employment with the first respondent and that this injury aggravated a pre-existing condition in his cervical spine and upper extremities during his employment with the second respondent. The deemed date of injury was set at 20 November 2009. The court further held that Mr. Fletcher's claim against both respondents was not barred by sections 254 and 261, as his claim was not precluded by the operation of these sections. Consequently, the court remitted the claim for permanent impairment compensation arising from both injuries to the President of the Personal Injury Commission for referral to a Medical Assessor. The claims for medical expenses and weekly compensation were adjourned for further telephone conference after the issuing of any Medical Assessment Certificate regarding the claim for permanent impairment compensation, in line with the decision in Jaffarie v Quality Castings Pty Ltd.

Orders