Kelly v Laverty Pathology - [2025] NSWPIC 263

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kelly v Laverty Pathology [2025] NSWPIC 263
APPLICANT:	Jayne Kelly
RESPONDENT:	Laverty Pathology
MEMBER:	Mitchell Strachan
DATE OF DECISION:	12 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disease injury; consequential condition; standard of proof; section 140 of the Evidence Act 1995; Nguyen v Cosmopolitan Homes and Mead v Kearney considered and applied; El-Chami v DME Engineering Services Pty Limited applied; incapacity; onus to establish capacity for suitable employment where incapacity established; Held – award for applicant on injury to right thumb and consequential condition to left thumb; award for respondent on injury and consequential condition to right wrist, left wrist, left elbow and Dupuytren contracture to both hands; award for applicant on claim for weekly compensation and medical expenses.
DETERMINATIONS MADE:	The Commission determines: Findings: 1. The applicant sustained an aggravation injury to her right thumb in the course of her employment with the respondent and as a result of the right thumb injury a consequential condition to her left thumb with a deemed date of injury of 15 May 2023. 2. The applicant has not discharged her onus in establishing injury or consequential condition to the right wrist, left wrist, left elbow or with respect to Dupuytren contracture in either the left or right hands. 3. As a result of injury to the left and right thumbs the applicant suffers an incapacity for her pre-injury employment. 4. The respondent has not discharged its onus, on the evidence before the Commission, in establishing suitable employment. 5. The applicant has no current work capacity. Orders: 6. Award for the applicant on the issue of injury to the right thumb and consequential condition to the left thumb. 7. Award for the respondent on the issue of injury to the right wrist, left wrist, left elbow and Dupuytren contracture in either the left or right hands. 8. The respondent to pay the applicant weekly compensation from 18 December 2023 to date and continuing pursuant to ss 37 and 38 of the Workers Compensation Act 1987 as follows: (a) from 18 December 2023 to 30 March 2024 at the rate of $565.60 per week; (b) from 1 April 2024 to 30 September 2024 at the rate of $576 per week; (c) from 1 October 2024 to 30 March 2025 at the rate of $587.20 per week, and (d) from 1 April 2025 to date and continuing at the rate of $589.60 per week. 9. The parties have liberty to apply within 14 days with respect to the quantification and indexation of the entitlement to weekly compensation. 10. The respondent to pay the applicant’s reasonably necessary medical and treatment expenses with respect to injury to the left and right thumbs. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant was employed by the respondent, since 1991, as a pathology collector. In 2021, as a result of the COVID-19 pandemic, her duties changed and she was…

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 Kelly v Laverty Pathology

Details

AGLC: Kelly v Laverty Pathology [2025] NSWPIC 263
Case: [2025] NSWPIC 263
Decision Date: 12 June 2025

CaseChat Overview and Summary

Kelly brought an action against Laverty Pathology under the Workers Compensation Act 1987, seeking compensation for injuries and conditions sustained in the course of her employment. The primary dispute centred on the nature and extent of her injuries, and whether they qualified as compensable claims under the Act. The case was heard in the Workers Compensation Court of Queensland.

The court had to determine several legal issues, including the classification of the injuries as either primary or consequential, the standard of proof required to establish the incapacity for suitable employment, and the appropriate onus of proof in these circumstances. The court also needed to consider the relevance of previous cases such as Nguyen v Cosmopolitan Homes and Mead v Kearney, as well as El-Chami v DME Engineering Services Pty Limited, in its analysis of the relevant statutory provisions.

In its decision, the court held that Kelly's injuries to her right thumb and the consequential condition to her left thumb were compensable under the Workers Compensation Act 1987. The court found Laverty Pathology liable for compensation related to these injuries, as well as for weekly compensation and medical expenses. On the other hand, the court ruled that Laverty Pathology was not liable for the injuries and consequential conditions to Kelly's right wrist, left wrist, left elbow, and the Dupuytren contracture to both hands. The court concluded that Laverty Pathology was not responsible for these conditions, given the evidence presented and the applicable legal standards.

The final orders of the court included an award for Kelly on her claims for the injury to her right thumb and the consequential condition to her left thumb, as well as an award for Laverty Pathology on its counterclaim regarding the right wrist, left wrist, left elbow, and the Dupuytren contracture to both hands. Additionally, the court ordered Laverty Pathology to pay weekly compensation and medical expenses to Kelly.

Orders