Hurley v Narooma Preschool Kindergarten Association - [2021] NSWPIC 408

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hurley v Narooma Preschool Kindergarten Association [2021] NSWPIC 408
APPLICANT:	Jula Hurley
RESPONDENT:	Narooma Preschool Kindergarten Association
MEMBER:	Kerry Haddock
DATE OF DECISION:	13 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses; applicant claimed to have sustained injury to cervical and lumbar spines as a result of disease pursuant to section 4(b)(i) or 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); injury in dispute; applicant sustained injury at home 11 days later; respondent maintained that any incapacity for work or necessity for medical treatment resulted from injury at home; consideration of Nguyen v Cosmopolitan Homes, State Government Insurance Office of NSW v Oakley, Government Insurance Office of NSW v Aboushadi, EMI (Australia) Ltd v Bes, Seltsam Pty Ltd v McGuiness, Military Rehabilitation and Compensation Commission v May, AV v AW, Wollongong Nursing Home Pty Ltd v Dewar and Lawarra Nominees Pty Ltd v Wilson; Held - the applicant sustained injury to her cervical and lumbar spines, pursuant to section 4(b)(ii) of the 1987 Act and the further injury resulted from the subsequent incident at home, which would not have occurred had the applicant not already been injured; the applicant has had no work capacity at all relevant times; award for the applicant for weekly benefits and medical expenses.
DETERMINATIONS MADE:	1. That there is an award for the applicant of weekly benefits as follows: (a) from 6 March 2016 to 5 June 2016 at the rate of $565.77 per week, pursuant to section 36 of the Workers Compensation Act 1987; (b) from 6 June 2016 to 2 September 2018 at the rate of $476.44 per week, pursuant to section 37 of the Workers Compensation Act 1987, and (c) from 3 September 2018 to 28 February 2021 at the rate of $476.44 per week, pursuant to section 38 of the Workers Compensation Act 1987. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 3. That the parties have liberty to apply with respect to the award of weekly benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jula Hurley (Ms Hurley) was employed by the respondent, Narooma Preschool Kindergarten Association (Narooma Kindergarten) as an early childhood educator.

Ms Hurley claims to have sustained injury to her neck and lower back, with deemed date of injury of 24 February 2016.

The applicant completed a Worker’s Injury Claim Form (the Claim Form) dated 18 April 2016. The date of injury was stated to be 24 February 2016. The applicant stated that she was shovelling dirt from compost to garden beds. She hurt her back, which became progressively worse, “then later began spasming, sciatica, numbness and lack of bladder control.” When she was injured, she was “moving 21 loads of dirt to garden beds in 1 ½ hours on 40º day”.

The Claim Form stated that the applicant “thought it was just sore muscles”, so the injury was not…

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: [2021] NSWPIC 408
Decision Date: 13 October 2021

CaseChat Overview and Summary

In Hurley v Narooma Preschool Kindergarten Association, the applicant sought compensation under the Workers Compensation Act 1987, claiming injuries to her cervical and lumbar spines resulted from a work-related disease. The respondent disputed the claim, arguing that any incapacity or need for treatment arose from a subsequent incident at home. The case was heard in a relevant Australian tribunal, which had to determine the source of the applicant's injuries and their relation to her employment.

The court examined whether the applicant's injuries were attributable to her work, as per section 4(b)(ii) of the 1987 Act, or whether they were caused by the incident at home. This required a detailed analysis of the applicant's medical history, the nature of her injuries, and the timing of events. The court considered several precedents, including Nguyen v Cosmopolitan Homes, State Government Insurance Office of NSW v Oakley, Government Insurance Office of NSW v Aboushadi, EMI (Australia) Ltd v Bes, Seltsam Pty Ltd v McGuiness, Military Rehabilitation and Compensation Commission v May, AV v AW, Wollongong Nursing Home Pty Ltd v Dewar, and Lawarra Nominees Pty Ltd v Wilson, to understand how to assess causation in workers' compensation claims.

The tribunal found that the applicant did indeed sustain injuries to her cervical and lumbar spines related to her employment, and that the subsequent home incident exacerbated these injuries. Given the applicant's complete lack of work capacity, the court ruled in her favour, awarding her weekly benefits and medical expenses. This decision underscores the importance of establishing a clear link between the work environment and the injury, as well as recognising the impact of subsequent events on pre-existing conditions.

Orders