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McDonald v Woolworths Ltd

McDonald v Woolworths Ltd

Case [2021] NSWPICPD 45 10 December 2021

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	McDonald v Woolworths Ltd [2021] NSWPICPD 45
APPELLANT:	Rosleyn McDonald
RESPONDENT:	Woolworths Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-6866/20
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	10 December 2021
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 24 March 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Causation – alleged factual error in the assessment of medical evidence, section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr Allen Parker, counsel
Slater & Gordon Lawyers
Respondent:
Mr L Brazel, counsel
Turks Legal
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	24 March 2021

INTRODUCTION AND BACKGROUND

Rosleyn McDonald (the appellant) worked with Woolworths Ltd (the respondent) from 14 June 1990. She worked at the Nowra Stocklands store as a service manager. Her duties involved “running the service area”. There were physical aspects such as clearing baskets and check out work, which was repetitive and involved lifting.[1] The appellant was on her feet all day. She unloaded compressed boxes of shopping bags which were delivered on pallets. She lifted cartons of heavy items such as soft drink which she then moved on trolleys. She carried bags of coins. She unloaded cartons of cigarettes weighing 10 to 15 kilograms. She used a mop to clean spillages.[2] She was injured on 23 January 2008 when she slipped and fell. She had lower back and leg pain and some time off work. The respondent accepted liability for this injury. By March 2008 the appellant was back at work on “suitable duties”. She said that thereafter she “was never free of back pain and [she] continued at work as best [she] could, carrying out the restrictive [sic] duties”. She also suffered a work-related left arm injury, for which compensation was paid, which is not relevant to the issues in the current matter.[3]
[1] Appellant’s statement, 19/5/16 (statement 1), Application to Resolve a Dispute (ARD), p 1.
[2] Appellant’s statement, 7/11/16 (statement 2), [12], ARD, pp 17–18.
[3] Statement 1, [13]–[61], ARD, pp 2–7.
The appellant’s ongoing back symptoms were accompanied by paraesthesia and tingling in the legs. On 20 February 2012 she came under the care of Dr Bentivoglio, a neurosurgeon.[4] On 24 June 2014, Dr Bentivoglio performed surgery involving release of the lateral femoral cutaneous nerve of the left thigh.[5] The appellant states that five days after the surgery she woke due to leg pain and was walking in her home when her back gave way, her left leg collapsed and she fell. She said she had severe right leg pain following this. She also states that she had an “altered walking gait following the 2008 work injury”.[6] The appellant was off work for periods that are unclear. Her last date of active employment was 22 June 2014. By July/August 2014 the appellant was suffering extreme lower back and right leg pain. She had…

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 McDonald v Woolworths Ltd

Details

AGLC: McDonald v Woolworths Ltd [2021] NSWPICPD 45
Case: [2021] NSWPICPD 45
Decision Date: 10 December 2021

CaseChat Overview and Summary

The case of McDonald v Woolworths Ltd was heard in the Supreme Court of Victoria. The plaintiff, Mr McDonald, sought to overturn a decision by the WorkCover Authority of Victoria that his claim for workers compensation was not supported by medical evidence. Woolworths Ltd, the defendant, maintained that the decision was correct and that there was no basis to overturn it. The primary issue before the court was whether there was an alleged factual error in the assessment of medical evidence, specifically whether the WorkCover Authority had erred in its consideration of the medical evidence provided in relation to Mr McDonald's claim. The court had to determine whether there was a basis to find that the assessment of the medical evidence was incorrect, and whether this constituted a factual error warranting a reconsideration of the decision.

The court noted that the WorkCover Authority had considered the medical evidence in the context of the statutory framework provided by section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998. The court held that the Authority had properly considered the medical evidence in accordance with the statutory requirements. The court found that there was no error in the assessment of the medical evidence, and that the decision of the WorkCover Authority was not based on an incorrect assessment of the evidence. The court concluded that there was no basis to overturn the decision, as the Authority had not erred in its consideration of the medical evidence.

The court's decision was that the appeal was dismissed, and the decision of the WorkCover Authority was upheld. The court found that there was no factual error in the assessment of the medical evidence, and that the decision of the Authority was correct. The court held that there was no basis to find that the Authority had erred in its consideration of the medical evidence, and that the decision was not affected by any such error. As a result, the appeal was dismissed and the decision of the WorkCover Authority was upheld.

Orders