Hill v Kmart Australia Limited - [2024] NSWPIC 71

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hill v Kmart Australia Limited [2024] NSWPIC 71
APPLICANT:	Katherine Hill
RESPONDENT:	Kmart Australia Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of surgery to the lumbar spine by the applicant worker pursuant to section 60 as a result of injury in the form of the aggravation, acceleration, exacerbation or deterioration of an admitted pre-existing degenerative condition in the lumbar spine; there was no issue that the applicant had engaged in strenuous and repetitive work for the respondent over the long period of her employment; the respondent denied injury, alleging that the applicant became incapacitated for work as a result of a leisure time incident while on annual leave; detailed examination of the treating and qualified medical evidence; finding that the leisure time incident was not causative of the applicant’s back condition; finding that the applicant had suffered an injury to the lumbar spine pursuant to section 4(b)(ii); the respondent did not dispute that the applicant required the lumbar spinal surgery, but that it was not reasonably necessary as a result of a work injury; finding that the surgery was reasonably necessary as a result of the injury as claimed by the applicant; Held – the respondent ordered to pay for the costs of and incidental to the surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her lumbar spine arising out of or in the course of her employment with the respondent deemed to have occurred on 18 January 2023. 2. The applicant’s employment was the main contributing factor to such injury. 3. The surgery proposed by Dr Damodaran in his report dated 7 March 2023 is reasonably necessary as a result of the injury. 4. The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987. 5. The applicant’s pre-injury average weekly earnings are $929. 6. The respondent is to pay the applicant $929 per week from 7 July 2023 to 21 July 2023.

STATEMENT OF REASONS

BACKGROUND

Katherine Hill (the applicant/Ms Hill) seeks weekly benefits for a short, closed period, and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), as a result of injury to her lumbar spine on 18 January 2023 arising out of or in the course of her employment, initially as a back dock operator and from 2016 onwards as an online team leader, with Kmart Australia Limited (the respondent/Kmart).
The applicant commenced her employment with the respondent in or about 2003 as a back dock operator, which involved her in receiving pallets of goods and unpacking them into departments for the fillers to attend to.
In 2016 Ms Hill moved to the online department as a team leader, which involved her in, inter alia, picking customers’ orders by pushing a H-cage around the store and packing…

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 71
Decision Date: 20 February 2024

CaseChat Overview and Summary

In the matter of Hill v Kmart Australia Limited, the applicant, Ms Hill, sought reimbursement from Kmart Australia Limited for the costs associated with lumbar spine surgery. The surgery was necessitated by an injury to her lumbar spine, which she claimed was an aggravation of a pre-existing degenerative condition due to her employment with Kmart. The nature of Ms Hill's work involved strenuous and repetitive tasks over many years. Kmart, the respondent, contested the claim, arguing that Ms Hill's incapacity was due to an incident occurring during her annual leave and not related to her employment. The case was heard in the Workers Compensation Court of Victoria.

The central legal issue was whether Ms Hill's lumbar spine injury, and consequently the need for surgery, was a result of her employment with Kmart. The court had to determine if the injury was an aggravation, acceleration, exacerbation, or deterioration of a pre-existing condition caused by her work activities. The court also needed to assess the necessity and reasonableness of the surgery in relation to the work injury, despite the respondent's contention that it was not reasonably necessary.

In delivering the judgment, the court conducted a detailed examination of both the treating and qualified medical evidence presented. The court found that the leisure time incident alleged by Kmart did not cause Ms Hill's back condition. Instead, it concluded that Ms Hill's condition was a result of her work with Kmart, thus satisfying the criteria under section 4(b)(ii) of the Workers Compensation Act 1987. The court was satisfied that the surgery was reasonably necessary as a result of the work injury, despite Kmart's argument to the contrary. Consequently, the court ruled in favour of Ms Hill and ordered Kmart to pay for the costs of and incidental to the surgery.

The final orders of the court mandated that Kmart Australia Limited was to bear the costs associated with Ms Hill's lumbar spinal surgery, including all incidental expenses. This ruling affirmed that the injury was work-related and the surgery was a necessary consequence of that injury, thus upholding Ms Hill's claim for compensation.

Orders