Nacol v Kmart Australia Ltd - [2024] NSWPIC 39

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nacol v Kmart Australia Ltd [2024] NSWPIC 39
APPLICANT:	Eelyana Nacol
RESPONDENT:	Kmart Australia Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	31 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; liability for injury to right elbow accepted; respondent disputed that the applicant had complex regional pain syndrome as a result of injury to right elbow and that she had sustained injury to cervical spine; no history until applicant’s statement in September 2023 that applicant jerked her neck when she bumped her right elbow in December 2020; no history obtained by any treating medical practitioner or independent medical examiner that applicant jerked her neck when she bumped her right elbow; applicant observed under surveillance to undertake activities inconsistent with her complaints; applicant explained inconsistencies as due to her taking opiates obtained using friends’ prescriptions and from her doctor uncle overseas; applicant’s credit in issue; consideration of Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins, and Nguyen v Cosmopolitan Homes; Held – award for the respondent with respect to claim for injury to cervical spine; matter remitted to President for referral to Medical Assessor for assessment of right upper extremity and complex regional pain syndrome.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent with respect to the claim for injury to the cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor, pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 8 December 2020 – personal injury (b) Body systems/parts: right upper extremity (right elbow; complex regional pain syndrome). If complex regional pain syndrome is present, the Medical Assessor is to assess the applicant’s right elbow; right shoulder; and right wrist. (c) Method of assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Application to Admit Late Documents dated 24 October 2023, filed by the respondent, and attached documents (Reply); (c) Application to Admit Late Documents dated 20 December 2023, filed by the respondent, and attached documents, and (d) This Certificate of Determination and statement of reasons.

STATEMENT OF REASONS

BACKGROUND

The applicant, Eelyana Nacol (Ms Nacol) was employed by the respondent, Kmart Australia Limited (Kmart) as a retail assistant.
Ms Nacol sustained an accepted injury to her right elbow on 8 December 2020. She also claims to have sustained injury to her cervical spine and complex regional pain syndrome (CRPS).
On 10 December 2020, an incident report was completed by Mr Joel Robbins, an employee of the respondent.
Mr Robbins recorded the date of injury as 8 December 2020. The applicant had reported it on 10 December 2020.
The applicant “was recovering in footwear stepped down from safety step and hit her elbow/funny bone on the end of peg.”…

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

AGLC: Nacol v Kmart Australia Ltd [2024] NSWPIC 39
Case: [2024] NSWPIC 39
Decision Date: 31 January 2024

CaseChat Overview and Summary

The case of Nacol v Kmart Australia Ltd involved a claim for permanent impairment compensation. The respondent, Kmart Australia Ltd, accepted liability for an injury to the applicant's right elbow but disputed that she had complex regional pain syndrome as a result of that injury and that she had also sustained injury to her cervical spine. The dispute came before the court to determine the validity of the applicant's claims and the extent of the injuries.

The central legal issues the court had to decide were whether the applicant had indeed sustained a cervical spine injury and whether she had complex regional pain syndrome as a result of her elbow injury. The court examined the applicant's credibility and the consistency of her statements and actions with her claims. Notably, there was no history of the alleged cervical spine injury until the applicant's statement in September 2023, which described her jerking her neck when she bumped her elbow in December 2020. Moreover, none of the treating medical practitioners or independent medical examiners had recorded this history. The court also considered surveillance footage that showed the applicant undertaking activities inconsistent with her complaints, which she attributed to her use of opiates obtained from various sources.

After considering the evidence, the court found that the applicant's credit was compromised due to the inconsistencies and lack of corroboration. The court relied on precedents such as Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins, and Nguyen v Cosmopolitan Homes to assess the applicant's credibility. Consequently, the court awarded the respondent in relation to the claim for injury to the cervical spine. The matter was remitted to the President for referral to a Medical Assessor to evaluate the right upper extremity and complex regional pain syndrome.

Orders