Litong v Blackmores Limited

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Litong v Blackmores Limited [2022] NSWPIC 237

APPLICANT:

Concepcion Litong

RESPONDENT:

Blackmores Limited

MEMBER:

Catherine McDonald

DATE OF DECISION:

24 May 2022

CATCHWORDS:

WORKERS COMPENSATION- Lumbar spine injuries in 2012 and 2021; worker returned to normal duties; disease injury; consequential psychological condition; current work capacity; ability to earn in a range of suitable employment; Held– award for applicant for weekly compensation and section 60 of the Workers Compensation Act 1987 expenses for which second insurer is liable. 

DETERMINATIONS MADE:

1.     The applicant discontinues the claim for weekly compensation after 18 January 2022.

2.     The Commission finds that

a.     the applicant suffered an injury to her lumbar spine which was the aggravation of a disease and that the deemed date of injury was 8 February 2021, and

b.     the applicant suffered a consequential psychological condition.

3.     The Commission determines that the respondent is to pay the applicant:

a. weekly compensation under s 37 of the Workers Compensation Act 1987:

  i.       at a rate or rates to be agreed by the parties reflecting any loss of earnings in the period from 21 April 2021 to 27 August 2021, and

  ii.       the rate of $210.40 per week from 28 August 2021 to 18 January 2022;

b.     section 60 expenses.

4.     The parties have liberty to apply by email if they are unable to agree on the amount of weekly compensation payable, if any, between 21 April 2021 and 27 August 2021.

STATEMENT OF REASONS

BACKGROUND

1. Conception Litong was employed by Blackmores Limited (Blackmores) as a machine operator. She claims that she suffered an injury to her lumbar spine, and a consequential psychological condition, as a result of the nature and conditions of her employment from 2011 to 8 February 2021 or that she suffered the aggravation of a disease with a deemed date of injury of 8 February 2021.

2. Blackmores was insured by QBE Workers Compensation (NSW) Limited for all periods of Ms Litong’s employment up to 31 December 2017. The liabilities of that insurer are managed by GIO and I will refer to the manager of that part of the claim as GIO to avoid confusion.

3. During GIO’s period of risk, Ms Litong suffered a lumbar strain injury on 25 October 2021 for which she was paid compensation.

4. Since 1 January 2018, QBE Workers Compensation (NSW) Limited has again been on risk for Blackmores and is referred to in the documents as QBE/icare. I will refer to it as QBE.

5. Each of the insurers says that the other is liable to pay any compensation to which Ms Litong is entitled and each disputes that there is sufficient evidence to find that she suffered a consequential psychological condition.

PROCEDURE

1. The claim was listed for conciliation conference and arbitration hearing on 3 March 2022 when Mr Moffet of counsel appeared for Ms Litong, Ms Compton of counsel appeared for GIO and Ms Goodman of counsel appeared for QBE.

2. The parties agreed that Ms Litong’s pre-injury average weekly…