Meiners v Newcastle Polished Concrete Pty Ltd - [2023] NSWPIC 652

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Meiners v Newcastle Polished Concrete Pty Ltd [2023] NSWPIC 652
APPLICANT:	Shaun Meiners
RESPONDENT:	Newcastle Polished Concrete Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	6 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and medical expenses for bilateral inguinal hernia injury to the lumbar spine; respondent disputes that injury was sustained in the course of employment; reference to AV v AW; extent of incapacity of worker and consideration of suitable employment; reference to relevant award rates of pay; reference to Wollongong Nursing Home P/L v Dewar and Husnain Pty Ltd v Workers Compensation Nominal Insurer & Another; Held – the worker sustained injury in the course of his employment with the respondent; award of weekly payments of compensation for various periods of total and partial incapacity and the payment of medical expenses for treatment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a bilateral inguinal hernia injury in the course of his employment with the respondent with a deemed date of injury of 13 August 2021. 2. The applicant had a partial incapacity for work between 14 August 2021 to 31 October 2022. 3. The applicant had the ability to earn $830 per week in suitable employment between 14 August 2021 and 30 June 2022 and the ability to earn $870 per week in suitable employment between 1 July 2022 and 31 October 2022. 4. The applicant had no current work capacity between 1 November 2022 and 1 December 2022. 5. The applicant had a partial incapacity for work between 2 December 2022 to 22 December 2022. 6. The applicant had the ability to earn $870 per week in suitable employment between 2 December 2022 to 22 December 2022. 7. The applicant’s pre-injury average weekly earnings were $1,051. The Commission orders: 8. The respondent is to pay the applicant weekly payments of compensation pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $168.50 per week from 13 August 2021 to 12 November 2021. 9. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) $20.80 per week from 13 November 2021 to 31 March 2022; (b) $36.40 per week from 1 April 2022 to 30 June 2022; (c) $25.60 per week from 1 October 2022 to 31 October 2022; (d) $895.60 per week from 1 November 2022 to 1 December 2022, and (e) $25.60 per week from 2 December 2022 to 22 December 2022. 10. The respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the bilateral inguinal hernia injury sustained by the applicant, including the costs of the surgery performed by Dr Wright on 1 November 2022.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Shaun Meiners, claims that he sustained bilateral inguinal hernias in the course of his employment as a concrete polisher with the respondent, Newcastle Polished Concrete Pty Ltd, as…

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: [2023] NSWPIC 652
Decision Date: 6 December 2023

CaseChat Overview and Summary

The case of Meiners v Newcastle Polished Concrete Pty Ltd involved the claimant, Meiners, who sought compensation for weekly payments and medical expenses related to a bilateral inguinal hernia injury to his lumbar spine. The respondent, Newcastle Polished Concrete Pty Ltd, contested the assertion that the injury was sustained during the course of employment. The matter was heard in the Workers Compensation Court of New South Wales. The primary legal issues before the court were whether the claimant's injury was indeed incurred in the course of employment and, if so, the extent of the incapacity and the appropriate compensation.

The court examined the evidence presented, including the claimant's work history and the nature of his employment with the respondent. It considered the precedent set by cases such as AV v AW and Wollongong Nursing Home P/L v Dewar, which dealt with similar issues of causation and incapacity. The court also referred to Husnain Pty Ltd v Workers Compensation Nominal Insurer & Another, which provided guidance on determining the appropriate compensation for incapacity. After evaluating the evidence and applying the relevant legal principles, the court found that the claimant's injury was indeed sustained in the course of his employment.

Consequently, the court awarded the claimant weekly payments of compensation for periods of total and partial incapacity, along with the payment of medical expenses for the treatment of his injury. The court's decision underscored the importance of establishing the link between the injury and the employment, as well as the need to assess the extent of the incapacity and the appropriate compensation. The final orders reflected the court's determination that the claimant was entitled to the compensation sought.

Orders