Isaac v Bedlinen & More Pty Ltd (In Liquidation) - [2023] NSWPIC 607

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Isaac v Bedlinen & More Pty Ltd (In Liquidation) [2023] NSWPIC 607
APPLICANT:	Zardi Isaac
FIRST RESPONDENT:	Bedlinen and More Pty Ltd
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Lea Drake
DATE OF DECISION:	10 November 2023
DATE OF AMENDMENT:	26 March 2024
CATCHWORDS:	WORKERS COMPENSATION - The applicant sought a finding that she had suffered a consequential injury to her left shoulder after an injury to her right shoulder from a frank injury and the nature and conditions of her work; she sought referral to a Medical Assessor in relation to the left and right upper extremity (shoulder); Held – a consequential injury was found.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her right shoulder as a result of lifting in the course of her employment including the repetitive lifting of a roller door. 2. The applicant suffered a frank injury to her right shoulder on 6 May 2020 when lifting a roller door at the first respondent’s premises. 3. The applicant has suffered consequential injury to her left shoulder as a result of reliance on her left shoulder following the injury to her right shoulder. The Commission Orders: 4. There will be an award for the applicant for an injury sustained to her right shoulder as a result of the nature and conditions of her employment and a frank injury sustained on 6 May 2020. 5. There will be an award for the applicant for an injury sustained to her left shoulder as a consequence of reliance on her left shoulder following the injury to her right shoulder, including payment of medical expenses pursuant to s 60 of the Workers Compensation Act 1987. 6. The applicant’s lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) Date of injury: 6 May 2020 (deemed); (b) Body system: right upper extremity (shoulder) and left upper extremity (shoulder); (c) Method of assessment: whole person impairment, and (d) Documents to be referred: Application to Resolve a Dispute and attachments, Reply and attachments and the history only contained in the report of Dr Waller dated 18 September 2023.

STATEMENT OF REASONS

BACKGROUND

Mrs Isaac (the applicant) was employed by the first respondent as a retail store manager on a full-time basis from 2008. She alleges that was injured by the nature and conditions of her employment and she also sustained an injury to her right shoulder on 6 May 2020. She alleges that she afterwards compensated for her right shoulder by using her left shoulder and consequently developed an injury to her left shoulder.

MATTERS IN DISPUTE

The following issues were in dispute:
(a)    a preliminary issue as to whether the first respondent could rely on the reports of two Independent Medical Assessors (IMEs), Dr Waller and Dr Powell;
(b)    the causation of the applicant’s injury to her right shoulder;
(c)    whether the applicant’s left shoulder was injured by…

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: [2023] NSWPIC 607
Decision Date: 10 November 2023

CaseChat Overview and Summary

Isaac v Bedlinen & More Pty Ltd (In Liquidation) involves a claim by the applicant, Isaac, against the respondent, Bedlinen & More Pty Ltd, regarding a consequential injury to her left shoulder following a primary injury to her right shoulder. The case was heard in the Workers Compensation Division of the Queensland District Court. The primary dispute centred on whether the applicant's left shoulder injury was a consequential injury to the initial right shoulder injury, and whether the nature and conditions of her employment contributed to the injuries.

The legal issues before the court included determining if the left shoulder injury was a consequential injury to the right shoulder injury, as defined under the Workers' Compensation Act, and if so, whether the applicant was entitled to compensation for the consequential injury. Additionally, the court needed to decide if the applicant should be referred to a Medical Assessor to assess the conditions of her left and right upper extremities. The court's consideration also extended to the extent of the applicant's entitlement to compensation and the appropriate steps for further medical assessment.

In its decision, the court found that the applicant's left shoulder injury was indeed a consequential injury to the initial right shoulder injury. The court relied on medical evidence and the statutory definitions of consequential injury to conclude that the left shoulder injury met the criteria for a consequential injury. The court further determined that a referral to a Medical Assessor was warranted to thoroughly assess the conditions of the applicant's left and right upper extremities. The court's findings were based on a detailed analysis of the medical reports and the statutory framework governing workers' compensation claims.

The final orders of the court included a finding that the applicant suffered a consequential injury to her left shoulder and mandated a referral to a Medical Assessor for a comprehensive assessment of both shoulders. The court's decision underscores the importance of clear medical evidence and statutory interpretation in determining consequential injuries and the appropriate compensation for workers.

Orders