Jackson v Scalabrini Village Ltd - [2022] NSWPIC 736

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Jackson v Scalabrini Village Ltd [2022] NSWPIC 736
APPLICANT:	Patricia Jackson
RESPONDENT:	Scalabrini Village Ltd
Member:	Jane Peacock
DATE OF DECISION:	22 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Allegation of cervical spine injury in two incidents at work for which the applicant sought a determination in respect of proposed cervical spine surgery; undisputed that lumbar spine was injured in both injuries; no contemporaneous reporting of neck injury and absence of contemporaneous complaints of neck pain in medical records; Held – all of the evidence weighed in the balance and held that the applicant had not discharged the onus of proof; award for the respondent.
determinations made:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Ms Patricia Jackson, seeks a determination in respect of surgery proposed to her cervical spine as a result of injury alleged to her cervical spine on 29 March 2018 and 22 April 2018 in the course of or arising out of her work as an Assistant in Nursing (AIN).
The respondent is Scalabrini Village Ltd (Scalabrini). Catholic Churches Insurance Limited is the relevant insurer for the purposes of workers compensation.
Scalabrini denied liability for the claim.

ISSUES IN DISPUTE

There is no dispute that Ms Jackson suffered two injuries at work on 29 March 2018 (the wheelchair incident) and again on 22 April 2018 (the pillow incident). There is no dispute that she hurt her lumbar spine in both incidents. There is no dispute that she has come to two lots of surgery on her lumbar spine as a result of both incidents.
Ms Jackson alleges she also injured her cervical spine in both incidents and seeks to have the surgery on her cervical spine as proposed by her treating neurosurgeon and spinal surgeon Dr Abrasko in the form of a discectomy and rhizolysis with laminectomy.
Scalabrini disputes the allegation of injury to the cervical spine.
In the event that liability for injury is determined in Ms Jackson’s favour, Scalabrini also disputes that the proposed surgery is reasonably necessary as a result of the injury on
29 March 2017 and 22 April 2017.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For Ms Jackson:
(a)    Application and attached documents;
(b)    late documents filed with an Application to Admit Late Documents on 7 Octiober 2022, and
(c)    statement dated 2 August 2019 tendered by consent…

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: [2022] NSWPIC 736
Decision Date: 22 December 2022

CaseChat Overview and Summary

Jackson brought an action against Scalabrini Village Ltd in the Workers Compensation Court, alleging that they suffered cervical spine injuries in two separate incidents at work. Jackson sought a determination for proposed cervical spine surgery. It was undisputed that Jackson suffered lumbar spine injuries in both incidents. The central issue was whether Jackson had also suffered a cervical spine injury and, if so, whether the injury arose out of and in the course of their employment. The key point of contention was the lack of contemporaneous reporting of a neck injury and the absence of contemporaneous complaints of neck pain in the medical records.

The court examined the evidence thoroughly, including medical reports and testimonies. It was noted that Jackson had not reported neck pain at the time of the incidents, and there were no complaints of neck pain in the medical records immediately following the incidents. The court held that Jackson had not discharged the onus of proof to establish that the cervical spine injury arose out of and in the course of their employment. The absence of contemporaneous complaints and reports of neck pain was a significant factor in the court’s decision. Given the evidence, the court found in favour of Scalabrini Village Ltd.

The court dismissed Jackson’s claim and ordered that Scalabrini Village Ltd was not liable for the proposed cervical spine surgery. The court concluded that the onus of proof had not been met by Jackson, and therefore, the award was made in favour of the respondent.

Orders