Stone v Gilbarco Australia Pty Ltd - [2024] NSWPICPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Stone v Gilbarco Australia Pty Ltd [2024] NSWPICPD 17
APPELLANT:	Raymond Barry Stone
RESPONDENT:	Gilbarco Australia Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W1060/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	14 March 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 2 June 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury – treatment of clinical notes – contemporaneity of complaint of cervical spine injury
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr M Evers, solicitor
Michael Evers & Co
Respondent:
Mr A Combe, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Stone v Gilbarco Australia Pty Ltd [2023] NSWPIC 257
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	2 June 2023

INTRODUCTION AND BACKGROUND

The appeal is from a Certificate of Determination dated 2 June 2023 in which the Commission determined that there should be an award for the respondent.
The appellant, Mr Raymond Stone, was employed by the respondent, Gilbarco Australia Pty Ltd, as an LPG Supervisor/Service Technician from about 1990. His duties required him to travel and on occasion stay overnight in motel accommodation.
On 21 November 2013, whilst walking into his allocated room, he fell on his left knee and the palm of his outstretched hand. In his statement dated 5 October 2022 the appellant said:
“When my left palm hit the step entry, I jolted my left shoulder. At the time I had pain in my left shoulder, left knee and neck.”[1]
[1] Application to Resolve a Dispute (ARD), p 2.
The respondent accepted the claim for the left knee and the left shoulder. The appellant was paid compensation and s 60 expenses including expenses referable to multiple surgical procedures.
Subsequently in 2022 the appellant brought a claim for a declaration that the respondent pay the costs of a proposed C5/6 anterior cervical decompression and fusion. Liability for that procedure was denied.
The dispute resolved by the Member was:
“(a) did the [appellant] injure his cervical spine?” (in the fall of 21 November 2023)
For the reasons that follow the appeal is dismissed and the Certificate of Determination dated 2 June 2023 is confirmed.
(I note that the Member’s Statement of Reasons contains a duplication of the paragraph enumeration at paragraph [39] so that there are 2 sets of paragraphs numbered [39] to [53]).

REASONS OF THE MEMBER

The Member identified the issue as being whether the appellant injured his cervical spine on 21 November 2013.
The facts are not substantially in dispute and the following summary is taken from the Member’s Statement of Reasons.[2]
[2] Stone v Gilbarco Australia Pty Ltd [2023] NSWPIC 257 (reasons).
The appellant fell on 21 November 2013. He attended Manning Base Hospital.
He consulted his General Practitioner, Dr Swanson, and came under the care of Dr Petrelis, a shoulder surgeon.
On 4 December 2013, Dr Petrelis performed surgery on the shoulder. The specialist referred the appellant for physiotherapy…

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: [2024] NSWPICPD 17
Decision Date: 14 March 2024

CaseChat Overview and Summary

The case before the Court of Appeal involved Stone, a former employee of Gilbarco Australia Pty Ltd, and his employer. The dispute centred on the employer's refusal to accept Stone's claim for workers' compensation for injuries sustained during employment, specifically a cervical spine injury. The matter was initially heard by the Workers Compensation Regulator of New South Wales and subsequently appealed to the Supreme Court of New South Wales, from where it was further appealed to the Court of Appeal.

The legal issues before the court encompassed the employer's obligation to accept the worker's claim for compensation, the admissibility and weight of clinical notes, and the timing of the complaint of injury. Central to the dispute was whether Stone's claim for injury was contemporaneously communicated to his employer, as required by the Workers Compensation Act 1987 (NSW). Additionally, the court needed to determine the appropriate treatment of clinical notes, particularly those prepared after the cessation of employment, in relation to the claim.

In reaching its decision, the Court of Appeal considered the legislative requirements for the contemporaneous reporting of injuries and the admissibility of clinical notes. The court noted that while the employer had the right to challenge the validity of a claim, the onus was on the employer to prove the absence of a compensable injury. The court emphasised that the requirement for contemporaneous communication of injury was not a strict condition but rather a principle that needed to be considered in the context of the overall circumstances. Furthermore, the court held that clinical notes, even if prepared after employment had ceased, could be considered if they were based on contemporaneous observations and complaints. The court found that Stone's complaints were sufficiently contemporaneous and that the employer had failed to discharge the burden of proving otherwise. The appeal was thus dismissed, and the original decision in favour of Stone was upheld.

The final orders of the Court of Appeal affirmed the decision of the Workers Compensation Regulator, mandating that Gilbarco Australia Pty Ltd accept Stone's claim for workers' compensation and compensate him for the cervical spine injury sustained during employment.

Orders