Khalil v HealthShare NSW - [2024] NSWPIC 262

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khalil v HealthShare NSW [2024] NSWPIC 262
APPLICANT:	Sanaa Khalil
RESPONDENT:	HealthShare NSW
MEMBER:	John Turner
DATE OF DECISION:	21 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Sections 4 and 66 of the Workers Compensation Act 1987 (1987 Act), section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); dispute as to whether injury to right shoulder is injury simpliciter or a disease injury due to the nature and conditions of employment; dispute as to consequential conditions of left shoulder, lumbar spine and cervical spine; dispute as to whether impairments of right shoulder, left shoulder, lumbar spine and cervical spine can be combined for the purposes of assessing impairment for section 66 of the 1987 Act; dispute as to admission of evidence pursuant to regulation 44 of the Workers Compensation Regulation 2016; McCarthy v Patrick Stevedores No 1 Pty Limited, Perry v Tanine Pty Ltd t/as Ermington Hotel, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, AV v AW, Ariton Mitic v Rail Corporation of NSW, Federal Broom Co Pty Ltd v Semlitch, Cemco (Australia) Pty Ltd t/as Carrall’s Engineering and Mining v Carrall, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, and Kooragang Cement Pty Ltd v Bates cited; Held – the applicant sustained a disease injury as defined by section 4(b) of the 1987 Act to her right shoulder being an aggravation of a disease in accordance with section 4(b)(ii) due to the nature and conditions of her employment which included the pushing, pulling and washing of heavy trolleys with a deemed date of injury of 2 May 2015; the applicant sustained a consequential condition of her left shoulder as a result of the injury to the right shoulder on 2 May 2015; the applicant sustained consequential conditions of her cervical spine and lumbar spine as a result of injury to her right shoulder on 2 May 2015 and consequential condition sustained to her left shoulder; the injuries to the right shoulder, left shoulder, cervical spine and lumbar spine can be combined for the purposes of assessing permanent impairment pursuant to section 66 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a disease injury as defined by s 4(b) of the Workers Compensation Act 1987 to her right shoulder being an aggravation of a disease in accordance with s 4(b)(ii) due to the nature and conditions of her employment which included the pushing, pulling and washing of heavy trolleys with a deemed date of injury of 2 May 2015. 2. The applicant sustained a consequential condition of her left shoulder as a result of the injury to the right shoulder on 2 May…

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: [2024] NSWPIC 262
Decision Date: 21 May 2024

CaseChat Overview and Summary

The applicant, Khalil, sought a determination from the court regarding the nature of injuries sustained during her employment with HealthShare NSW, including whether these injuries were compensable under the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The case involved disputes about the classification of injuries to her right shoulder, left shoulder, lumbar spine, and cervical spine, as well as the admissibility of certain evidence. The court was tasked with deciding whether the injuries were disease injuries, whether they could be combined for impairment assessment, and the admissibility of evidence under regulation 44 of the Workers Compensation Regulation 2016.

The court examined the definitions and criteria set out in the relevant statutes and considered precedent cases such as McCarthy v Patrick Stevedores No 1 Pty Limited and Perry v Tanine Pty Ltd t/as Ermington Hotel. It determined that the applicant's right shoulder injury was a disease injury due to the aggravation of a pre-existing condition by her employment activities, which included pushing, pulling, and washing heavy trolleys. The court also found that the applicant sustained consequential conditions in her left shoulder, cervical spine, and lumbar spine as a result of the initial injury to her right shoulder on 2 May 2015. Furthermore, the court held that these injuries could be combined for the purposes of assessing permanent impairment under section 66 of the 1987 Act.

The court ruled that the applicant's injuries to her right shoulder, left shoulder, cervical spine, and lumbar spine were compensable under the applicable legislation. It also found that the evidence provided was admissible, and the injuries could be combined for the purposes of assessing impairment. The final orders included a declaration that the applicant sustained a disease injury to her right shoulder, consequential conditions in her left shoulder, cervical spine, and lumbar spine, and that these injuries could be combined for impairment assessment.

Orders