Morris v Woolworths Group Limited - [2021] NSWPIC 441

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Morris v Woolworths Group Limited [2021] NSWPIC 441
APPLICANT:	Dianne Morris
RESPONDENT:	Woolworths Group Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	31 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits for short, closed period and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses in respect of frank incident involving the left knee and ankle; the respondent does not dispute that the applicant worker was involved in an incident involving the left ankle and knee on the date of injury claimed, but disputes the nature of the left knee injury; detailed examination of the Safety Incident Report created on the date of injury, the applicant’s evidence, reports of treating practitioners, and the only IME report in evidence, tendered by the applicant; Held -finding that the applicant had not discharged the onus of proof on her in respect of the injury to her left knee she claims to have suffered on the date of the frank incident; award for the respondent in respect of the applicant’s claim for weekly benefits for the closed period and section 60 of the 1987 Act expenses.
DETERMINATIONS MADE:	1. The Application to Resolve a Dispute is amended to restrict the applicant’s claim for weekly benefits to the period from 5 September 2020 to 3 October 2020 2. The applicant has not discharged the onus on her to prove that the suffered an aggravation, acceleration exacerbation or deterioration of osteoarthritis, and a tear of the medical meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent. 3. Award for the respondent in respect of such injury. 4. The applicant has not suffered incapacity for any work from 5 September 2020 to 3 October 2020 as a result of injury arising out of or in the course of her employment with the respondent on 31 January 2019. 5. Award for the respondent in respect of the claim for weekly benefits from 5 September 2020 to 3 October 2020. 6. Award for the respondent in respect of the claim for expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Dianne Morris (the applicant/Ms Morris) claims weekly benefits and expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of her employment with Woolworths Group Ltd (the respondent/Woolworths) on 31 January 2019.
Ms Morris commenced employment with Woolworths on 18 May 1978, and in or around 2016 commenced as the “Customer Service Manager” at the respondent’s Medowie store. Her duties in that role included watching over the floor, supervising service staff, and serving customers in the express check-out and smoke shop.
On 31 January 2019 the applicant claims that she was undertaking her regular duties serving customers in the smoke shop, which involves a lot of pivoting back and forth between the register and…

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: [2021] NSWPIC 441
Decision Date: 31 October 2021

CaseChat Overview and Summary

The applicant, Morris, brought a claim against Woolworths Group Limited for weekly benefits for a short, closed period and expenses under section 60 of the Workers Compensation Act 1987. The claim arose from a frank incident involving injuries to the applicant's left knee and ankle. Woolworths did not dispute that the applicant was involved in an incident on the date claimed but contested the nature of the left knee injury. The case was heard in the Workers Compensation Commission of New South Wales.

The court needed to determine whether the applicant had sustained the injuries she claimed, particularly focusing on the nature of the left knee injury. The analysis involved scrutinising the Safety Incident Report from the date of the incident, the applicant's testimony, reports from treating medical practitioners, and the independent medical examination (IME) report provided by the applicant. The pivotal issue was whether Morris had successfully discharged the burden of proof regarding the extent and nature of her left knee injury.

Upon reviewing the evidence, the court concluded that Morris had not met her burden of proof concerning the left knee injury she claimed to have sustained during the frank incident. The evidence, particularly the IME report, did not support the severity of the left knee injury as alleged. Consequently, the court found in favour of Woolworths, ruling that Morris's claim for weekly benefits for the closed period and section 60 expenses was unsubstantiated.

As a result, the court dismissed Morris's claim and awarded costs in favour of Woolworths. The final order was that Morris's application for weekly benefits for the closed period and section 60 expenses was dismissed, with Woolworths to be reimbursed for its legal costs.

Orders