Neumayer v Woolworths Group Ltd - [2024] NSWPIC 490

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Neumayer v Woolworths Group Ltd [2024] NSWPIC 490
APPLICANT:	Ildiko Neumayer
RESPONDENT:	Woolworths Group Limited
MEMBER:	John Isaksen
DATE OF DECISION:	4 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for injury to the left shoulder and consequential conditions affecting the cervical spine and right shoulder; dispute as to consequential condition affecting the cervical spine; Moon v Conmah Pty Limited referred to; whether there has been an explanation as to whether restrictions and symptoms in the cervical spine are as a result of injury to the left shoulder; Hevi Lift (PNG) Ltd v Etherington referred to; Held – worker did not suffer a consequential condition affecting her cervical spine; matter referred to Medical Assessor for assessment of permanent impairment for left and right shoulders.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent for the claim made by the applicant that she has suffered a consequential condition affecting her cervical spine as a result of the injury she sustained to her left shoulder on 3 August 2010. The Commission orders: 2. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 3 August 2010 Body parts: left upper extremity (shoulder); right upper extremity (shoulder) as a consequential condition Method of Assessment: whole person impairment. 3. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Ildiko Neumayer, sustained an injury to her left shoulder on 3 August 2010 while employed as a night service supervisor with the respondent, Woolworths Group Ltd. The applicant wrenched her left arm and shoulder while trying to stop a box of plastic shopping bags from falling.
The respondent has admitted liability for this injury.
The applicant underwent surgery to the left shoulder on 29 July 2014 by way of a repair of a labral tear and subacromial decompression and which was performed by Dr Maniam.
The applicant claims that she has suffered a consequential condition affecting her right shoulder as a result of the injury to her left shoulder, and this additional claim has been accepted by the respondent.
The applicant has made a claim for a lump sum payment for 24% whole person impairment based upon an assessment made by Dr Peter Giblin, orthopaedic surgeon, which comprises 13% permanent impairment of the left shoulder, 8% permanent impairment of the left shoulder, and 5% permanent impairment of the cervical spine. The applicant claims that she has suffered a consequential condition affecting her cervical spine as a result of the injury to her left shoulder.
The respondent disputes that the applicant has suffered a consequential condition affecting her cervical spine as a result of the injury to her left shoulder.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has suffered a…

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: Neumayer v Woolworths Group Ltd [2024] NSWPIC 490
Case: [2024] NSWPIC 490
Decision Date: 4 September 2024

CaseChat Overview and Summary

In the case of Neumayer v Woolworths Group Ltd, the worker, Ms Neumayer, sought compensation for permanent impairment following an injury to her left shoulder and consequential conditions affecting the cervical spine and right shoulder. The dispute was heard in the Workers Compensation Division of the District Court of New South Wales. The central issue was whether the worker had sustained a consequential condition affecting her cervical spine as a result of the initial injury to her left shoulder.

The court was required to determine whether there was an adequate explanation as to whether the restrictions and symptoms in the cervical spine were indeed a result of the injury to the left shoulder. This involved examining the medical evidence and expert opinions presented, including references to previous cases such as Moon v Conmah Pty Limited and Hevi Lift (PNG) Ltd v Etherington. The court needed to ascertain if there was a direct causal link between the initial injury and the symptoms in the cervical spine.

The court found that there was insufficient evidence to establish that the worker suffered a consequential condition affecting her cervical spine. It was determined that the restrictions and symptoms in the cervical spine were not a result of the injury to the left shoulder. Consequently, the matter was referred to a Medical Assessor for the assessment of permanent impairment for the left and right shoulders only. This decision was based on the lack of a clear causal relationship between the initial injury and the cervical spine symptoms.

Orders