Humphrey v Woolworths Group Limited - [2024] NSWPIC 218

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Humphrey v Woolworths Group Limited [2024] NSWPIC 218
APPLICANT:	Mark John Humphrey
RESPONDENT:	Woolworths Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	30 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses in respect of injury to the lumbar spine; injury in dispute; applicant sustained injury at home four days prior to alleged injury; lack of contemporaneous history of injury to hospital, general practitioner, or physiotherapist; conflicting claim forms; applicant had made prior claims for injury to his lumbar spine and other injuries; consideration of Davis v Council of the City of Wagga Wagga, Mason v Demasi, and Nguyen v Cosmopolitan Homes; Held – the applicant did not establish injury on the balance of probabilities; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mark John Humphrey (Mr Humphrey) was employed by the respondent, Woolworths Limited (Woolworths), as a shop assistant.
Mr Humphrey claims to have sustained numerous injuries to his lower back/lumbar spine, none of which resulted in him being unable to work, while employed by the respondent; and an injury to his lumbar spine on 28 May 2022, due to which he became incapacitated for work.
The applicant completed a Worker’s Injury Claim Form (the first claim form) on 10 June 2022.
The date of the injury, to the lower back, was recorded as 24 May 2022. It occurred at “home”. The applicant was “sitting of [sic] chair and chair broken landed on my butt.” He had had “same injury over the years.”
The applicant had ceased work on 28 May 2022, and reported the injury to Andy Rogers, store manager, on 31 May 2022. He had had other such injuries or conditions, “Yes Woolworths September 2021 plus other times reported.”
The reason given by the applicant for the delay in reporting the injury was “Workers comp is stressful didn’t want the extra stress had injury many times before thought it would come good quicker.”
On 8 July 2022, Employers Mutual Limited (EML), acting as claims agent for the respondent, issued the applicant with a notice pursuant to s 287A of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).
This notice was apparently in response to a request on 27 June 2022 that EML review a decision on 17 June 2022 to dispute liability for the applicant’s claim, although neither the notice nor the request for review is in evidence.
EML advised the applicant that its decision to decline his claim had been upheld.
EML disputed that the applicant had sustained injury; that employment was a substantial contributing factor to any injury; that he had any incapacity for work as a result of a workplace injury; and that medical treatment was reasonably necessary as a result of a workplace injury.
The applicant completed a further Worker’s Injury Claim Form (the second claim form) on 3 August 2022.
The…

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 218
Decision Date: 30 April 2024

CaseChat Overview and Summary

Humphrey brought a claim against Woolworths Group Limited for workers' compensation, seeking weekly benefits and medical expenses in relation to an injury to his lumbar spine. The dispute centred on whether the injury occurred during the course of his employment with Woolworths. The case was heard in the relevant tribunal. The central legal issues were whether the injury to Humphrey's lumbar spine occurred in the course of his employment and if so, whether he had discharged the onus of proving this injury on the balance of probabilities. The court needed to consider the credibility of the applicant's evidence and the documentary evidence provided.

The court considered the case law of Davis v Council of the City of Wagga Wagga, Mason v Demasi, and Nguyen v Cosmopolitan Homes, which established that the applicant must prove the injury on the balance of probabilities. The court noted that Humphrey had sustained an injury at home four days prior to the alleged injury, and there was no contemporaneous history of this injury to a hospital, general practitioner, or physiotherapist. Furthermore, the claim forms submitted by Humphrey were conflicting. The court also considered that Humphrey had made prior claims for injury to his lumbar spine and other injuries. The court found that Humphrey did not establish the injury on the balance of probabilities. Consequently, the application for workers' compensation was dismissed.

The tribunal held that the applicant failed to discharge the onus of proving that the injury to his lumbar spine occurred in the course of his employment with Woolworths. The tribunal found that the applicant did not establish the injury on the balance of probabilities. Therefore, the tribunal awarded costs to the respondent. The applicant's claim for weekly benefits and medical expenses was dismissed.

Orders