McDonald v Woolworths Ltd - [2021] NSWPIC 43

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McDonald v Woolworths Ltd [2021] NSWPIC 43
APPLICANT:	Rosleyn McDonald
RESPONDENT:	Woolworths Ltd
MEMBER:	Mr Cameron Burge
DATE OF DECISION:	24 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Injury and consequential condition; whether worker suffered injury or consequential condition to L2-L4 segments of her lumbar spine requiring surgery; applicant suffered injury to L4/5 segment in a fall in 2008, together with other accepted injuries; development of problems in other lumbar segments disputed; Held- the applicant did not discharge the onus of proof with respect to the presence of a relevant lumbar spine injury, as the evidence did not disclose the presence of relevant pathological change in the claimed body parts; Castro v State Transit Authority (NSW) [2000] NSWCC 12 discussed; it is not necessary for a worker to satisfy the requirements of an injury as defined in section 4 of the Workers Compensation Act 1987 in order to establish a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 followed; to establish a consequential condition, an applicant must demonstrate an unbroken chain which provides a relative causal explanation between the claimed condition and the original injury; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied; the applicant did not establish on the balance of probabilities that she suffered a consequential condition to the claimed body parts as a result either of the nature and conditions of her employment or as a result of a stumble at home which took place shortly after she underwent left lateral femoral nerve release surgery; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

On 23 January 2008, Rosleyn McDonald (the applicant) was working for Woolworths Ltd (the respondent) at the Nowra store when she slipped on a grape and fell awkwardly onto her left side. In that fall, she suffered injury to her left arm, left groin, left knee and the L4/5 level of her lumbar spine.

The applicant eventually underwent left lateral femoral cutaneous nerve release on 24 June 2014 at the hands of Dr Bentivoglio. That surgery was paid for by the respondent. Following the surgery, she alleges she suffered severe pain in her back and was limping, causing her leg to give way and for her to stumble, which she says gave rise to significant further lumbar spine pathology.

Alternatively, the applicant alleges that over time, she developed significant pathology in her lower back owing to the nature and conditions of her employment or that her employment aggravated an underlying condition in her lumbar spine. In other words, the applicant alleges she suffered a consequential condition to her lower back as a result of the altered gait and favouring of her left leg brought about by the original fall on 23 January 2008, or a condition consequent upon the post-femoral release fall which she suffered at home shortly after the 2014 surgery.

On 2 February 2017, the applicant underwent an L2/L3 laminectomy. She seeks payment from…

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] NSWPIC 43
Case: [2021] NSWPIC 43
Decision Date: 24 March 2021

CaseChat Overview and Summary

The case of McDonald v Woolworths Ltd was heard before the NSW Workers Compensation Commission. The applicant, McDonald, sought compensation for injuries sustained during her employment with Woolworths, as well as for a consequential condition to her lumbar spine. The primary dispute centred on whether McDonald had suffered an injury or a consequential condition to her L2-L4 lumbar spine segments that required surgical intervention. McDonald had previously sustained an injury to her L4/5 segment in a fall in 2008, along with other accepted injuries. However, the development of problems in the other lumbar segments was contested by Woolworths.

The court was tasked with determining the presence of a relevant lumbar spine injury and whether McDonald had established a consequential condition to her L2-L4 lumbar spine segments. The court held that McDonald had not discharged the burden of proof regarding the presence of a relevant lumbar spine injury, as the evidence did not demonstrate the presence of relevant pathological changes in the claimed body parts. The court relied on Castro v State Transit Authority (NSW) [2000] NSWCC 12 and clarified that an applicant need not satisfy the definition of an injury under section 4 of the Workers Compensation Act 1987 to establish a consequential condition. Instead, Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 was followed, requiring the applicant to demonstrate an unbroken chain that provides a relative causal explanation between the claimed condition and the original injury. The court found that McDonald did not establish on the balance of probabilities that she suffered a consequential condition to the claimed body parts as a result of either the nature and conditions of her employment or a stumble at home that occurred shortly after she underwent left lateral femoral nerve release surgery.

The final outcome of the case was an award in favour of Woolworths. The court ruled that McDonald had not met the necessary burden of proof to establish the presence of a relevant lumbar spine injury or a consequential condition, and thus, her claim for compensation was dismissed.

Orders