Gready v Ricegrowers Limited - [2022] NSWPIC 438

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gready v Ricegrowers Limited [2022] NSWPIC 438
APPLICANT:	Paige Gready
RESPONDENT:	Ricegrowers Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	4 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits on the basis of no current work capacity; voluntary payments of weekly payments being made at a rate agreed in prior proceedings; subsequent downgrade in certificates of capacity; evidence of ongoing symptoms at left knee and right hip; suitable employment pursuant to section 32A of the Workers Compensation Act 1987; relevance of geographical labour market; Held — applicant remained unfit for pre-injury duties and other physical work; evidence of capacity to work in light sedentary duties; Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer and Wollongong Nursing Home Pty Ltd v Dewar applied; evidence of real jobs in which the applicant would be able to work; Commission not satisfied that applicant had no current work capacity; the Commission declined to make the orders sought by the applicant.
DETERMINATIONS MADE:	The Commission declines to award weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 4 March 2022 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Ms Paige Gready (the applicant) was employed by Ricegrowers Limited (the respondent) as a machinery operator. On 18 September 2020, the applicant sustained an injury at work when she tripped and fell. Liability for the injury is not presently in dispute.
The applicant returned to work for a period of time, performing light duties, before ceasing work on 19 February 2021.
In previous proceedings before the Personal Injury Commission (the Commission)[1], agreement was reached between the parties that the respondent would pay the applicant weekly compensation on a voluntary basis from 6 August 2021, on an ongoing basis, at the rate of $750 per week.
[1] W4357/21.
On 4 March 2022, the applicant’s general practitioner, Dr Paul Wang, issued a certificate downgrading the applicant’s work capacity to nil. The applicant, through her solicitor, made a claim on 28 March 2022 for weekly benefits to be paid at a higher rate. The applicant claimed that she should be paid 80% of her agreed pre-injury average weekly earnings (PIAWE) rate of $1,530, as indexed, in accordance with s 37(1) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant’s claim was not determined within the statutory time limit and, on 6 May 2022, the present proceedings were commenced by an Application to Resolve as Dispute (ARD).
The applicant seeks weekly compensation from 4 March 2022 in accordance with s 37(1) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 19 July 2022 via Microsoft Teams. The applicant was represented by Mr Luke Morgan of counsel, instructed by Mr Nayven Taouk. The respondent was represented by Mr Paul Rickard of counsel, instructed by Mr Michael Lee. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of…

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 438
Decision Date: 4 August 2022

CaseChat Overview and Summary

Gready brought an application against Ricegrowers Limited seeking weekly compensation benefits, claiming no current work capacity. The case was heard in the Workers Compensation Commission of New South Wales. The applicant argued that they remained unfit for their pre-injury duties and other physical work due to ongoing symptoms in their left knee and right hip, as evidenced by medical certificates. They contended that suitable employment did not exist for them in their geographical labour market, and therefore, they were entitled to weekly compensation benefits.

The legal issues before the court included determining whether the applicant remained unfit for their pre-injury duties and other physical work, and whether suitable employment existed for the applicant within their geographical labour market. The court had to consider the medical evidence presented, the nature of the work available, and the relevant statutory provisions, particularly section 32A of the Workers Compensation Act 1987.

The Commission held that there was evidence of the applicant's capacity to work in light sedentary duties and that there were real jobs in which the applicant would be able to work. The Commission found that the applicant had not satisfied it that they had no current work capacity. Applying the principles from Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer and Wollongong Nursing Home Pty Ltd v Dewar, the Commission concluded that the applicant remained unfit for their pre-injury duties and other physical work, but suitable employment did exist for them. Consequently, the Commission declined to make the orders sought by the applicant.

The Commission ordered that the applicant's application be dismissed, with no orders as to costs.

Orders