Target Australia Pty Ltd v Lewington

[2009] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Target Australia Pty Ltd v Lewington [2009] NSWWCCPD 23
APPELLANT:		Target Australia Pty Ltd
RESPONDENT:		Heather Lesley Lewington
INSURER:		Self insured
FILE NUMBER:		A1-007061/08
DATE OF ARBITRATOR’S DECISION:		11 November 2008
DATE OF APPEAL DECISION:		10 March 2009
SUBJECT MATTER OF DECISION:		Section 9A of the Workers Compensation Act 1987; substantial contributing factor.
PRESIDENTIAL MEMBER:		His Hon. Judge Keating, President
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Evergham Solomons
ORDERS MADE ON APPEAL:		1.       For the reasons given in this decision, the Arbitrator’s determination made on 11 November 2008 is confirmed. 2.       The Appellant pay the Respondent’s costs of the appeal.

INTRODUCTION

1. The issue in this case is whether Ms Lewington’s employment was a substantial contributing factor to the injury to her left knee.  The injury occurred when Ms Lewington walked up a flight of stairs at work and heard her left knee click and felt pain in her knee.

1. The Arbitrator found in Ms Lewington’s favour, awarding her compensation payments and payment of medical expenses on the basis that she had suffered an injury and that her employment was a substantial contributing factor to the injury.

1. Her employer appeals that decision on the basis that the Arbitrator misapplied section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).

BACKGROUND TO THE APPEAL

1. On 8 December 2008 Target Australia Pty Ltd (‘the Appellant/Target’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 November 2008.

1. Target is a member of the Coles Group and Coles Group Limited–Injury Service (‘Coles’) holds a self-insurer licence for workers compensation.

1. The Respondent to the Appeal is Ms Heather Lewington (‘the Respondent/Worker’). 

1. Ms Lewington is a 47-year-old register operator. She worked at Target at Tamworth 20 hours per week and had been employed at Target for approximately four years prior to the alleged work injury.

1. On 22 February 2008, Ms Lewington had completed her shift and was walking up a flight of stairs between the first and second floor of the Target store in order to retrieve her personal belongings from her locker in the staff room.  About half way up the flight of stairs her left knee clicked and she immediately experienced pain. She continued up the stairs, collected her bag and went home.

1. Ms Lewington sought medical treatment and underwent radiological investigations, which demonstrated a medial meniscal tear in the left knee.  Her treating doctor has recommended that she undergo arthroscopic surgery.

1. Coles, on behalf of Target, refused to accept provisional liability by letter dated 27 February 2008.  Ms Lewington ultimately received weekly compensation benefits for the period from the date of injury to 24 March 2008 under an interim payment direction dated 22 April 2008.

1. By letter dated 25 March 2008, Coles served a section 74 notice and denied liability on the basis that injury did not arise out…