Shin v The Star Entertainment Group Ltd - [2023] NSWPIC 362

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Shin v The Star Entertainment Group Ltd [2023] NSWPIC 362
APPLICANT:	Hyo Jin Shin
RESPONDENT:	The Star Entertainment Group Ltd
Member:	Anne Gracie
DATE OF DECISION:	20 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits pursuant to section 37; claim for section 60 expenses; issues in relation to resolution of injury and incapacity and residual earning capacity; consideration of applicant’s statements, medical reports and other treatment records, vocational and functional capacity reports, certificates of capacity, claim correspondence, Deed of Release and wage material; Wollongong Nursing Home Pty Ltd v Dewar, DHL Excel Supply Chain (Australia) PtyLtd v Hyde and Greif Australia Pty Ltd v Ahmed considered; Held – the applicant’s left shoulder injury has not resolved; the applicant remains partially incapacitated for work; the applicant is entitled to ongoing benefits of weekly compensation pursuant to section 37; the applicant is also entitled to medical and related expenses pursuant to section 60.
determinations made:	The Commission determines: 1. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows (a) $688.88 per week for the period 10 August 2021 to 25 March 2022; (b) $417.68 per week for the period 26 March 2022 to 31 March 2022; (c) $436.08 per week for the period 1 April 2022 to 19 June 2022; (d) $503.85 per week for the period 20 June 2022 to 30 June 2022; (e) $132.78 per week for the period 1 July 2022 to 30 September 2022; (f) $171.73 per week for the period 1 October 2022 to 31 March 2023, and (g) $222.08 per week for the period 1 April 2023 to date and continuing as adjusted. 2. A general order pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s reasonably necessary medical and related treatment expenses as a result of the injury deemed to have occurred on 24 August 2015

STATEMENT OF REASONS

BACKGROUND

Hyo Jin Shin (the applicant) is 45-years-old. She was born in South Korea. In 1997 she came to Australia to study graphic design and completed a three-year bachelor’s degree at the Wesley Institute in Sydney.
She returned to South Korea and worked as a graphic designer.
She then applied for permanent residency in Australia which was granted in 2002.
In 2004, she permanently moved to Australia and became an Australian citizen in March 2008. In 2004 after returning to Australia she worked as a banquet service attendant from August 2005 to May 2006
She was then offered a position with the respondent, the Star Casino and did unpaid training for one month in October 2006.
She was formally employed by the respondent from the 6 November 2006. She was employed as a blackjack dealer.
In mid-2007 she started to experience pain in her left shoulder after two hours of dealing cards.
The applicant sought medical treatment and was able to return…

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

Case: [2023] NSWPIC 362
Decision Date: 20 July 2023

CaseChat Overview and Summary

The case of Shin v The Star Entertainment Group Ltd involved a claim for workers compensation by the applicant against the respondent employer. The applicant alleged an injury to their left shoulder during employment, which led to ongoing issues affecting their capacity to work. The dispute was heard in the Workers Compensation Commission of New South Wales, which had to determine the applicant's entitlement to weekly benefits under section 37 of the Workers Compensation Act 1987 and medical and related expenses under section 60 of the same Act.

The primary legal issues before the court were whether the applicant's left shoulder injury had resolved, whether the applicant remained partially incapacitated for work, and whether the applicant was entitled to ongoing weekly compensation and medical expenses. The court considered various documents, including the applicant's statements, medical reports, vocational and functional capacity reports, certificates of capacity, correspondence related to the claim, a Deed of Release, and wage material. The court also referenced Wollongong Nursing Home Pty Ltd v Dewar, DHL Excel Supply Chain (Australia) Pty Ltd v Hyde, and Greif Australia Pty Ltd v Ahmed to aid in its determination.

After examining the evidence, the court concluded that the applicant's left shoulder injury had not resolved, and the applicant remained partially incapacitated for work. Consequently, the applicant was entitled to ongoing benefits of weekly compensation pursuant to section 37 and was also entitled to medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987. The court's decision was based on the applicant's inability to return to their previous employment due to the unresolved injury and the corresponding impact on their earning capacity. The court ordered the respondent to pay the applicant ongoing weekly compensation and medical expenses as determined by the commission.

Orders