Gibson v Woolworths Group Limited - [2022] NSWPIC 131

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gibson v Woolworths Group Limited [2022] NSWPIC 131
APPLICANT:	Darren Gibson
RESPONDENT:	Woolworths Group Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	25 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation at a higher rate than currently being paid; accepted lumbar injury in 2018; whether acute flare in symptoms at work in 2021 constituted a new injury or recurrence of 2018 injury; where increase or intensification in symptoms attributed by all doctors to repetitive lifting of cartons of soft drink; applicant had returned to pre-injury duties following 2018 injury; although there were some residual symptoms, they were “manageable”; whether no current work capacity; after changing nominated treating doctor applicant’s capacity downgraded; Held- the applicant sustained a new injury pursuant to section 4(b)(ii) of the of the Workers Compensation Act 1987; weight of evidence favoured a finding of no current work capacity in the period of weekly compensation claimed; award in favour of the applicant for weekly compensation.
DETERMINATIONS MADE:	1. The applicant sustained a new injury to his lumbar spine on 5 February 2021 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The applicant had no current work capacity from 16 June 2021 to date and continuing as a result of the 5 February 2021 injury. 3. The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 16 June 2021 to date and continuing based on a pre-injury average weekly earnings (PIAWE) figure of $1,499.28 (as periodically indexed). 4. The respondent to have credit for payments already made in the period above.

STATEMENT OF REASONS

BACKGROUND

Mr Darren Gibson (the applicant) was employed by Woolworths Group Limited (the respondent) as a storeperson.
The applicant sustained an accepted injury to his lumbar spine at work on 8 September 2018. The applicant returned to work following that injury but, on 5 February 2021, reported that he had experienced acute lower back pain and stiffness with referred pain down his left leg and foot whilst lifting soft drink cartons at work.
A recurrence of the 2018 injury was accepted by the insurer. Payments of weekly compensation were commenced on the basis that the applicant retained current work capacity in accordance with certificates issued by the applicant’s nominated treating doctor.
On 16 June 2021, the applicant attended a new general practitioner, Dr Eric Lim of the Workers Doctors, who issued a certificate of capacity certifying the applicant as having no current work capacity.
Liability to pay weekly compensation on the basis that the applicant had no current work capacity was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 June 2021. That decision was maintained following internal review pursuant to s 287A of the 1998 Act on 14 October 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury…

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: [2022] NSWPIC 131
Decision Date: 25 March 2022

CaseChat Overview and Summary

Gibson commenced proceedings against Woolworths Group Limited seeking increased weekly compensation payments. Gibson, who suffered a lumbar injury in 2018, experienced an acute flare-up of symptoms in 2021. Gibson contended that the flare-up constituted a new injury, whereas Woolworths argued it was a recurrence of the 2018 injury. The matter was heard by the Workers Compensation Court of Queensland.

The primary issue before the court was whether the acute flare-up of symptoms in 2021 was a new injury or a recurrence of the 2018 injury. This required the court to consider the statutory provisions of the Workers Compensation Act 1987, specifically section 4(b)(ii), and the medical evidence presented by both parties. The court also needed to determine whether Gibson had any current work capacity.

The court held that Gibson had sustained a new injury as defined under section 4(b)(ii) of the Workers Compensation Act 1987. The evidence indicated that the increase or intensification of Gibson's symptoms was attributable to repetitive lifting of cartons of soft drink. This constituted a new injury as it was a separate event from the 2018 injury. The court also found that the weight of evidence favoured a finding of no current work capacity during the period for which Gibson claimed weekly compensation. This finding was based on the applicant’s downgraded capacity after changing their treating doctor.

The court awarded Gibson weekly compensation for the new injury sustained in 2021. The award was based on the finding that Gibson had no current work capacity during the relevant period.

Orders