Meyers v Ampol Retail Pty Ltd - [2023] NSWPIC 680

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Meyers v Ampol Retail Pty Ltd [2023] NSWPIC 680
APPLICANT:	Melanie Meyers
RESPONDENT:	Ampol Retail Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	19 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of right trigger finger surgical decompression; applicant claimed to have sustained “disease injury” pursuant to section 4(b)(i) as a result of employment as a barista; respondent disputed that the applicant had sustained injury; respondent did not dispute that the proposed medical treatment was reasonably necessary; consideration of AV v AW; applicant sustained “disease injury” pursuant to section 4(b)(i); Held – award for applicant pursuant to section 60 for the costs of proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987, being the costs of right trigger finger surgical decompression.

STATEMENT OF REASONS

BACKGROUND

The applicant, Melanie Meyers (Ms Meyers) was employed by the respondent, Ampol Retail Pty Ltd (Ampol), as a barista.
Ms Meyers claims to have sustained a “disease injury” to her right thumb, deemed to have happened on 1 March 2021.
It has been recommended that the applicant undergo surgery in the form of right trigger finger surgical decompression.
On 19 May 2022, the respondent’s insurer, Insurance and Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), for carpal tunnel syndrome (CTS). The notice, however, also referred to right thumb trigger finger.
The notice stated that iCare disputed liability for the applicant’s claim for ongoing incapacity due to CTS; and her claimed right thumb trigger finger.
By letter dated 4 August 2023, the applicant’s solicitors requested on her behalf a review of iCare’s decision.
On 18 August 2023, iCare/EML issued the applicant with a notice pursuant to s 287A of the 1998 Act, maintaining the decision dated 19 May 2022.
The applicant lodged an Application to Resolve a Dispute (the Application) on
31 August 2023.
The applicant claimed to have sustained a disease injury, deemed to have happened on
1 March 2021.
The applicant claimed that her employment at the particular store was extremely demanding. She was required to temper the coffee, which involved forceful pressure on the machine, using the palm of her right hand, and she used her left hand to hold the milk jug.
Over time, the applicant began to experience pain and swelling at the base of her right thumb, as well as pain in the palm of her right hand. She was diagnosed with CTS and underwent right open carpal tunnel decompression.
It had been recommended that the applicant undergo a right thumb trigger finger release, as she had developed those symptoms as a consequence of her CTS and surgery.
The applicant claimed the sum of $1,269, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) being the costs…

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 680
Decision Date: 19 December 2023

CaseChat Overview and Summary

In the matter of Meyers v Ampol Retail Pty Ltd, the applicant sought to recover the costs of right trigger finger surgical decompression under the Workers Compensation Act 1987. Meyers, a former barista for the respondent, claimed that he sustained a disease injury as defined in section 4(b)(i) due to his employment. The respondent contested the claim, asserting that Meyers had not sustained an injury, although it did not dispute that the proposed medical treatment was reasonably necessary. The case hinged on whether Meyers had indeed sustained a disease injury as a result of his employment and whether the proposed surgical treatment was necessary.

The legal issues before the court included the interpretation of the term “disease injury” under section 4(b)(i) of the Workers Compensation Act 1987, and whether Meyers' condition qualified as such an injury. Additionally, the court had to determine whether the proposed medical treatment was reasonably necessary and whether the respondent should bear the costs of this treatment. The court referenced the case of AV v AW to assist in its interpretation of the statutory provisions and the nature of the injury claimed.

The court found that Meyers had indeed sustained a disease injury within the meaning of section 4(b)(i). It considered the evidence presented and concluded that the proposed surgical treatment was reasonably necessary for Meyers' condition. Based on this, the court awarded Meyers the costs of the proposed surgery under section 60 of the Act. The respondent's objections to the nature and causation of the injury were dismissed, and the court ruled in favour of the applicant.

The final orders of the court were that the respondent, Ampol Retail Pty Ltd, was to pay for the costs of the proposed surgical decompression of Meyers' right trigger finger. The respondent was also directed to cover any associated costs related to the treatment deemed reasonably necessary.

Orders