Redpath v State of New South Wales (HealthShare NSW) - [2024] NSWPIC 249

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Redpath v State of New South Wales (HealthShare NSW) [2024] NSWPIC 249
APPLICANT:	Sharyn Redpath
RESPONDENT:	State of New South Wales (HealthShare NSW)
MEMBER:	Lea Drake
DATE OF DECISION:	14 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant sought weekly payments of compensation, payment for spinal surgery and a general order for section 60 expenses arising from an injury occasioned by an aggravation to an underlying condition brought about by unergonomic workplace arrangements and an excessive workload; found there was no aggravation as alleged; Held – award for the respondent issued.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s incapacity and need for surgery did not arise from an injury in the respondent’s employment, either from unergonomic workstations or overwork from extended hours. The Commission orders: 2. There will be an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Sharyn Redpath (the applicant) was employed by the State of New South Wales (HealthShare NSW) (the respondent).
On 6 October 2015 the applicant commenced employment as a contractor with the Ministry of Health as a senior property consultant.
In August 2016 the applicant became a permanent employee in the same position.
The applicant worked a seven day/35 hour week with the ability to take three days Flex leave in any six week timesheet settlement period. Her work comprised computer desk work and attending meetings which during Covid19 were completed online.
From September 2022 to May 2023 the applicant acted in the position of Manager, Asset Services.
The applicant ceased work on 3 May 2023 which is her alleged date of injury.
The applicant alleges an injury to her neck and back arising from the nature and conditions of her employment pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) being an aggravation, acceleration, exacerbation or deterioration of an underlying condition which has contributed to the need for surgery.
She has provided certificates in relation to her incapacity from Dr Martine Walker, her general practitioner, until 27 March 2024.
The applicant seeks payments of weekly compensation from 22 March 2022 and continuing pursuant to s 36 and s 37 of the 1987 Act.
The applicant’s agreed pre-injury average weekly earnings (PIAWE) was $2,659.46.
The applicant also seeks payment of medical expenses for surgery which has already taken place in the sum of $37,347 plus a general order pursuant to s 60 of the 1987 Act.

MATTERS IN DISPUTE

Causation is in dispute.

PROCEEDINGS BEFORE THE PERSONAL INJURY COMMISSION

Ms Grotte of counsel, instructed by Ms Abou-Karan of Turner Freeman Lawyers appeared for the applicant. Mr Grimes of counsel, instructed by Mr Gilmour of Hicksons Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all…

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.

Continue reading Redpath v State of New South Wales (HealthShare NSW)

Details

AGLC: Redpath v State of New South Wales (HealthShare NSW) [2024] NSWPIC 249
Case: [2024] NSWPIC 249
Decision Date: 14 May 2024

CaseChat Overview and Summary

In the matter of Redpath v State of New South Wales (HealthShare NSW), the applicant, Redpath, sought weekly payments of compensation, payment for spinal surgery and a general order for section 60 expenses arising from an injury she alleged was occasioned by an aggravation to an underlying condition brought about by unergonomic workplace arrangements and an excessive workload. The respondent, HealthShare NSW, disputed the applicant’s claims, arguing that there was no evidence to support the proposition that her condition was aggravated by her employment and that her claims for compensation were not justified under the Workers Compensation Act 1987.

The primary legal issues before the court were whether the applicant’s condition was aggravated by her employment, and if so, whether she was entitled to weekly payments, medical treatment and section 60 expenses. The court needed to determine the applicability of the statutory provisions in the Workers Compensation Act 1987, specifically sections 33, 59 and 60, which relate to the entitlement to compensation for total or partial incapacity, and the necessity of medical or related treatment as a result of an injury.

The court found that there was no evidence of an aggravation of the applicant’s underlying condition as a result of her employment. Dr Peter Maloney’s independent medical examination concluded that the applicant’s issues were constitutional in origin and not related to her employment. The court accepted the findings of Dr Maloney and rejected the applicant’s claims for compensation. The court held that since there was no evidence of an injury arising from the applicant’s employment, she was not entitled to weekly payments, medical treatment or section 60 expenses under the Workers Compensation Act 1987.

The court issued an award in favour of the respondent, HealthShare NSW, and against the applicant, Redpath. The court dismissed the applicant’s claims for weekly payments, medical treatment and section 60 expenses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The s 78 Notice issued on 3 September 2023[5] stated:[5] Reply page 100“Summary of the decisionWe do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.Reasons for the decision:On 19 May 2023, QBE received your claim for injury resulting in muscular pain to your back, shoulder and arm as a result from excessive office work hours at the computer. We note that you remain unfit from the alleged date of injury being 03 May 2023. QBE accepted liability for Cervical radiculopathy associated withmore generalised back shoulder and arm pain on 27 May 2023. QBE received a request for treatment from Dr Brian Hsu on 23 May 2023 being a request for C3 - C7 spinal decompression and spinal fusion and C3 - T1 spinal decompression and spinal fusion surgery.On 31 May 2023 and on 2 June 2023 QBE sent some clarifying questions to Dr Brian Hsu, however the response received was inadequate, therefore the surgery was declined.On 11 July 2023 you attended an Independent MedicalExamination with Dr Peter Maloney.QBE accepted liability for your claim on 27 July 2023 pending the outcome of the Independent Medical Examination.On 28 July 2023 QBE received the final report from Dr Peter Maloney. Dr Peter Maloney reported that there is no evidence of an injury to your cervical spine or lumbar spine arising out of or in the course of your employment. Your employment is not a substantial contributing factor to the condition.Dr Peter Maloney does not believe that you have aggravated or accelerated your underlying condition of cervical or lumbar spondylosis. Employment is not a main contributing factor.Dr Peter Maloney reports that you have a long past history of cervical and lumbar spondylosis. He states the issues are constitutional in origin and do not have a genesis in the nature and the conditions of your employment.We consider that all of the available evidence confirms that there is no evidence of an injury to your cervical spine or lumbar spine arising out of or in the course of your employment. Youremployment is not a substantial contributing factor to thecondition.Accordingly, liability is disputed on the following basis:QBE dispute that your injury is work related and as such, we are declining your liability for ‘Cervical radiculopathy associated with more generalised back shoulder and arm pain’ along with anyassociated incapacity or medical expenses required for this injury as per sections 33, 59 and 60.” Respondent’s counsel submitted that the proposition that the applicant’s condition was stable commencement of employment was inaccurate. Counsel also took the Commission through the clinical notes[6] where it is indicated that the applicant is being prescribed very strong pain medication from 2012 onwards. I will not detail the references here. Counsel submitted that the notes and the prescription pain medication does not support the applicant’s statement that her back and neck pain were fine.[6] ARD page 874 onward.

Ratio Decidendi

Legal Principle Established

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