Port Marina Pty Ltd v McKinnon - [2023] NSWPICPD 76

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Port Marina Pty Ltd v McKinnon [2023] NSWPICPD 76
APPELLANT:	Port Marina Pty Ltd
RESPONDENT:	Jodie McKinnon
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3896/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	29 November 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 25 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – the worker slipped and fell onto her left side and ruptured a breast implant – whether the worker sustained an injury within the meaning of section 4 of the Workers Compensation Act 1987 – May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 discussed and applied – whether the Member considered relevant evidence – adequacy of reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S McMahon, counsel
Turks
Respondent:
Mr G Young, counsel
Fern Lawyers Pty Ltd
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	25 November 2022

INTRODUCTION

The respondent worker, Ms Jodie McKinnon, commenced employment as a cleaner with the appellant, Port Marina Pty Limited, in about February 2021.
Approximately 20 years prior to this employment, the respondent had undergone bilateral breast augmentation surgery. The respondent states that she never experienced any trouble with the implants over the years up until the accident, which is the subject of these proceedings.
On 6 May 2021 whilst working as a cleaner for the appellant, the respondent was mopping a bathroom floor when she slipped on the wet floor. In her statement dated 10 June 2022, the respondent describes “landing heavily on my left breast and left side. I felt immediate pain to my left breast, and it felt tender to the touch. I did not notice a change in colour however, I felt as though my breast was bruised and swollen.”[1] The respondent attended upon her medical practitioners with an MRI subsequently confirming a capsular rupture in the left breast.[2]
[1] Application to Resolve a Dispute (ARD), p 2, [18]–[19].
[2] Report of Dr Colin Chong, 24 May 2021, ARD, p 103.
The respondent’s claim for weekly compensation and surgery, to remove and replace the damaged breast implant, was denied by the appellant.[3]
[3] Notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998, 31 August 2021, ARD, p 5.
The matter was heard before Member McDonald on 14 September 2022. As the matter did not finish on that date, the parties exchanged and filed written submissions. The Member issued the decision on 25 November 2022,[4] finding largely in favour of the respondent.[5] It is from this decision that the appellant appeals.
[4] McKinnon v Port Marina Pty Ltd [2022] NSWPIC 654 (reasons).
[5] The Member made an award for the appellant with respect to the secondary psychological injury.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information…

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.

Keep reading for free

Create a free CaseChat account to read Port Marina Pty Ltd v McKinnon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICPD 76
Decision Date: 29 November 2023

CaseChat Overview and Summary

Port Marina Pty Ltd contested a decision of the Workers Compensation Regulator, who had awarded compensation to a worker, Ms. McKinnon, following an incident at work where she slipped and fell, rupturing a breast implant. The matter was heard in the Administrative Appeals Tribunal (AAT). The primary legal issue before the court was whether the injury sustained by Ms. McKinnon constituted an injury within the meaning of section 4 of the Workers Compensation Act 1987, and if the Member of the AAT had properly considered the relevant evidence in reaching their decision. The court considered the decision of the Full Federal Court in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 to determine whether the injury was of a type covered by the Act.

The court found that the injury, while not a traditional physical harm, was still an injury within the meaning of the Act, as it involved a rupture of a breast implant which had a significant impact on Ms. McKinnon's health and wellbeing. The court also held that the Member had adequately considered the relevant evidence in reaching their decision, and there were no errors in the consideration of the evidence or in the outcome reached. The decision of the Regulator was therefore affirmed.

Orders