McLellan v Woolworths Group Limited - [2022] NSWPIC 407

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McLellan v Woolworths Group Limited [2022] NSWPIC 407
APPLICANT:	Terance McLellan
RESPONDENT:	Woolworths Group Limited
MEMBER:	Jacqueline Snell
DATE OF DECISION:	25 July 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his cervical spine; left shoulder and right shoulder (consequential) resulting from the nature and conditions of employment with the respondent; the respondent accepts the applicant sustained injury to his cervical spine but disputes alleged injury to the right left shoulder and right shoulder (consequential); the respondent also disputes the deemed date of injury to be the date the applicant made his claim for permanent impairment compensation; Held – the applicant sustained injury to his left shoulder and right shoulder (consequential) as a result of the nature and conditions of his employment; with the deemed date of injury being the date the applicant made his claim for permanent impairment compensation under section 66 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to his left shoulder in the course of his employment with the respondent as a result of the nature and conditions of his employment with the respondent. The applicant’s employment with the respondent is the main contributing factor to that injury. 2. The applicant sustained consequential injury to his right shoulder. 3. The deemed date of injury for the applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is 28 June 2021, being the date the applicant made his claim for permanent impairment compensation for injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) as a result of the nature and conditions of his employment with the respondent. 4. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) in the course of his employment with the respondent, with a deemed date of injury of 28 June 2021, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are: (a) Application to Resolve a Dispute and attached documents, (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 20 June 2022 and attached documents lodged on behalf of the applicant.

STATEMENT OF REASONS

BACKGROUND

The applicant, Terance McLellan (Mr McLellan) initially commenced employment with the respondent, Woolworths Group Ltd, (Woolworths) on a casual basis in 2007. Mr McClellan subsequently progressed to full time employment in 2009, working as a store person. Mr McLellan’s employment with Woolworths was terminated in May 2020. Mr McLellan is right hand dominant.
Mr McLellan claims permanent…

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: [2022] NSWPIC 407
Decision Date: 25 July 2022

CaseChat Overview and Summary

In the case of McLellan v Woolworths Group Limited, the applicant sought permanent impairment compensation for injuries to his cervical spine, left shoulder, and right shoulder (consequential), which he claimed resulted from the nature and conditions of his employment with the respondent. The respondent accepted that the applicant had sustained an injury to his cervical spine but contested the injuries to his left shoulder and right shoulder, as well as the deemed date of injury, which the applicant argued should be the date he made his claim for compensation. The dispute was adjudicated in the relevant court.

The central legal issues that the court had to decide involved the extent of the applicant's injuries, their causation by the employment, and the appropriate deemed date of injury for the purposes of compensation. The court needed to examine the evidence provided by both parties to determine whether the applicant's claims about the injuries and their consequences were substantiated, and whether these injuries could be linked to his employment.

The court found that the applicant did indeed sustain injuries to his left shoulder and right shoulder (consequential) as a result of his employment. The evidence presented by the applicant was deemed sufficient to support these claims, and the court accepted that these injuries arose from the conditions of his employment. Furthermore, the court ruled that the deemed date of injury should be the date the applicant made his claim for permanent impairment compensation, as stipulated under the relevant legislation. This decision was based on the legislative framework and the applicant's procedural steps in lodging his claim.

As a result of the court's findings, the applicant was entitled to compensation for the injuries sustained. The final orders would likely include the recognition of the injuries to the left shoulder and right shoulder as work-related, along with the determination of the deemed date of injury, leading to the entitlement of permanent impairment compensation under the relevant act.

Orders