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Schellack v Jarvie Engineering Pty Ltd

Schellack v Jarvie Engineering Pty Ltd

Case [2024] NSWPIC 665

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Schellack v Jarvie Engineering Pty Ltd [2024] NSWPIC 665
APPLICANT:	Glenn Schellack
RESPONDENT:	Jarvie Engineering Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	3 December 2024 14 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed right shoulder disease injury and entitlement to weekly benefits and medical and related expenses; Held – the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in the right shoulder within the meaning of section 4(b)(ii) arising out of his employment with the respondent deemed to have occurred on 9 August 2023; the applicant had no current work capacity between 9 August 2023 and 12 February 2024 as a result of the injury; the respondent is to pay the applicant weekly benefits compensation and reasonably necessary medical and related treatment as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to include the deemed date of injury 9 August 2023. 2. The applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in his right shoulder in the course of his employment with the respondent with deemed date of injury 9 August 2023 pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). 3. The applicant had no current work capacity from 9 August 2023 to 12 February 2024 and is entitled to weekly compensation in that period pursuant to ss 36 and 37 of the 1987 Act. 4. The applicant is entitled to payment of reasonably necessary medical, hospital and related expenses arising from the right shoulder injury with deemed date of injury 9 August 2023 including the cost of surgery on 9 August 2023 pursuant to s 60 of the 1987 Act. The Commission orders: 5. The respondent is to pay the applicant weekly compensation at the pre-injury average weekly earnings rate of $1,537.99 subject to indexation as follows; (a) for the period 9 August 2023 to 30 September 2023 at $1,537.99 x 95%, being $1,461.09, pursuant to s 36(1) of the 1987 Act; (b) for the period 1 October 2023 to 8 November 2023 at $1,537.99 x 1.0237, or $1,574.44 rounded to $1,570.00 x 95%, being $1,491.50 pursuant to s 36(1) of the 1987 Act, and (c) for the period 9 November 2023 to 12 February 2024 at $1,574.44 rounded to $1,570.00 x 80%, being $1,256.00 pursuant to s 37(1) of the 1987 Act. 6. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amount referred to above. 7. The respondent is to pay the reasonably necessary medical, hospital and related expenses arising from the applicant’s right shoulder injury with deemed date of injury 9 August 2023 including the cost of surgery on 9 August 2023 pursuant to s 60 of the 1987 Act at the State Insurance Regulatory Authority gazetted rates. A brief statement is attached setting out the Commission’s reasons for the determination.

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 Schellack v Jarvie Engineering Pty Ltd

Details

AGLC: Schellack v Jarvie Engineering Pty Ltd [2024] NSWPIC 665
Case: [2024] NSWPIC 665
Decision Date: 3 December 2024 14 February 2025

CaseChat Overview and Summary

The applicant, Schellack, brought an action against Jarvie Engineering Pty Ltd in the Workers Compensation Magistrates Court, seeking weekly benefits and payment of medical and related expenses due to an alleged aggravation of a right shoulder disease. The dispute centred on whether Schellack's condition constituted an aggravation, acceleration, exacerbation, or deterioration of a disease process under section 4(b)(ii) of the Workers Compensation Act 1987, and if so, whether it arose out of his employment with Jarvie Engineering. Schellack argued that his employment activities precipitated the worsening of a pre-existing shoulder condition, leading to a loss of work capacity. Jarvie Engineering contended that the injury did not qualify under the statutory provisions and that Schellack's condition was unrelated to his work.

The court was tasked with determining whether Schellack's shoulder condition met the criteria for an aggravation, acceleration, exacerbation, or deterioration of a disease process, and whether this condition arose out of his employment. The court had to examine the medical evidence and the factual circumstances surrounding the progression of Schellack's shoulder condition to establish if there was a causal link between his employment activities and the deterioration of his condition. Additionally, the court needed to assess the period during which Schellack was incapable of working due to the injury and whether the employer was liable for compensation during that period.

In its decision, the court found that Schellack had suffered an aggravation, acceleration, exacerbation, or deterioration of a disease process in the right shoulder arising out of his employment with Jarvie Engineering, deemed to have occurred on 9 August 2023. The court accepted that Schellack had no current work capacity between 9 August 2023 and 12 February 2024 due to the injury. The court held that Jarvie Engineering was responsible for paying Schellack weekly benefits compensation and reasonably necessary medical and related treatment costs as a result of the injury. The court's determination was based on a comprehensive analysis of the medical evidence and the specific work-related factors contributing to the aggravation of Schellack's shoulder condition.

Jarvie Engineering Pty Ltd was ordered to pay Schellack weekly benefits compensation and reasonably necessary medical and related treatment costs for the period from 9 August 2023 to 12 February 2024, inclusive. The court directed that the employer would be responsible for these payments, acknowledging the causal link between Schellack's employment activities and the aggravation of his shoulder condition.

Orders