Ilin v State of New South Wales (Northern Sydney Local Health District) - [2024] NSWPIC 565

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ilin v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPIC 565
APPLICANT:	Svetlana Ilin
RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
MEMBER:	Rachel Homan
DATE OF DECISION:	11 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and compensation pursuant to section 60 for the costs of, and incidental to, right shoulder surgery; whether injury to right shoulder due to repetitive data entry over a period of approximately 10 years; delay in reporting a work-related cause for the shoulder symptoms; whether symptoms were emanating from cervical pathology; Held – the applicant discharged her onus of establishing on the balance of probabilities that she had sustained an injury to her right shoulder to which employment with the respondent was the main contributing factor; the surgery was reasonably necessary as a result of injury; the applicant was totally incapacitated for work following the surgery as claimed; awards in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to her right shoulder to which her employment with the respondent was the main contributing factor pursuant to s 4(b) of the Workers Compensation Act 1987. 2. The right shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis, supraspinatus tendon excision of calcium, possible rotator cuff repair and interval release surgery performed by Dr Sushil Pant was reasonably necessary as a result of injury pursuant to s 60 of the Workers Compensation Act 1987. 3. The respondent to pay the reasonably necessary costs of and incidental to the surgery in accordance with s 60 of the Workers Compensation Act 1987. 4. The claim for weekly compensation for the period 1 April 2024 to 21 April 2024 is discontinued. 5. The Application to Resolve a Dispute is amended to claim weekly compensation for the period from 27 August 2024 to 15 September 2024 based on a pre-injury average weekly earnings (PIAWE) rate of $2,306.49. 6. The respondent to pay the applicant weekly compensation pursuant to s 36(1) of the Workers Compensation Act 1987 from 27 August 2024 to 15 September 2024 based on the agreed PIAWE rate of $2,306.49.

STATEMENT OF REASONS

BACKGROUND

Ms Svetlana Ilin (the applicant) was employed by the State of New South Wales (Northern Sydney Local Health District) (the respondent) as a coder for approximately 11 years.
The applicant claims that she sustained an injury to her dominant right shoulder due to the repetitive nature of her work.
The respondent’s insurer disputed liability for the right shoulder injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 May 2024.
The applicant sought internal review of that decision in correspondence from her solicitor, dated 9 May 2024. That correspondence annexed a request, dated 3 May 2024, from Dr Sushil Pant seeking approval for a right shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis, supraspinatus tendon excision…

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.

Continue reading Ilin v State of New South Wales (Northern Sydney Local Healt...

Details

AGLC: Ilin v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPIC 565
Case: [2024] NSWPIC 565
Decision Date: 11 October 2024

CaseChat Overview and Summary

The applicant, Ms Ilin, sought weekly compensation and compensation for the costs of surgery related to her right shoulder. She brought the claim against the State of New South Wales, represented by the Northern Sydney Local Health District, under the Workers Compensation Act 1987. Ms Ilin argued that her right shoulder injury was due to repetitive data entry over a period of approximately ten years. She contended that the delay in reporting the injury was not significant, and that the symptoms were not caused by cervical pathology.

The primary legal issue before the court was whether the applicant had established on the balance of probabilities that her right shoulder injury was attributable to her employment, and whether the surgery was reasonably necessary as a result of the injury. The court also needed to determine whether Ms Ilin was totally incapacitated for work following the surgery as she had claimed.

The court found that Ms Ilin had discharged her onus of proof, establishing on the balance of probabilities that her right shoulder injury was caused by repetitive data entry over a period of approximately ten years, and that her employment was the main contributing factor. The court accepted that the delay in reporting the injury did not preclude a finding in her favour, and that the surgery was reasonably necessary. The applicant was also found to be totally incapacitated for work following the surgery, as she had claimed. The court therefore made awards in favour of Ms Ilin for both weekly compensation and compensation for the costs of surgery.

No additional orders were made by the court.

Orders