Taylor v Coles Group Ltd - [2023] NSWPIC 657

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taylor v Coles Group Ltd [2023] NSWPIC 657
APPLICANT:	Karren Taylor
RESPONDENT:	Coles Group Limited
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	8 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant suffered left knee injuries on 13 June 2012, 25 September 2012 and 1 August 2017; in 2019 the parties accepted that each of the three injuries materially contributed to the need for a total knee replacement paid by the respondent; the applicant commenced proceedings for section 66 compensation based on the three work injuries; assessed by Medical Assessor at 21% impairment; the only issue was the quantum of section 66; respondent submitted that first injury determined the quantum entitlement; applicant relied on the last injury; Held – respondent’s submissions inconsistent with previous findings and agreements that three work injuries each materially contributed to the need for surgery and that 21% impairment based on the three work injuries; the principle in Ozcan v Macarthur Disability Services Ltd applied where the worker based the entitlement only on the first injury; observations of Neilson CCJ in Sidiropoulos v Able Placements Pty Ltd applied; applicant entitled to section 66 compensation based on the last injury.
DETERMINATIONS MADE:	The Commission finds and orders: Findings 1. The applicant has a 21% permanent impairment resulting from injuries on 13 June 2012, 25 September 2012 and 1 August 2017. 2. The applicant is entitled to the sum of $53,810 as compensation pursuant to s 66 of the Workers Compensation Act, 1987. Order 3. The respondent pays the applicant the sum of $53,810 for 21% permanent impairment resulting from injuries on 13 June 2012, 25 September 2012 and 1 August 2017.

STATEMENT OF REASONS

BACKGROUND

Ms Karren Taylor (the applicant) sustained injuries to the left knee in the course of her employment with Coles Group Limited (the respondent) on 13 June 2012, 25 September 2012 and 1 August 2017.
The respondent accepted the following in its written submissions dated 3 July 2023.[1]
“The applicant sustained three frank injuries to left knee as described in her statement dated 18 March 2019 and the certificate of determination – consent orders dated 8 May 2019. The parties agreed on 8 May 2019 of each of the three injuries materially contributed to the need further total left knee replacement surgery. That surgery was ultimately carried out on 13 August 2019.” (footnotes omitted)
[1] Respondent’s submissions, [33].
The finding and order founding that concession provided:[2]
“The Respondent accepts that each of the injuries occurring on 13 June 2012, 25 September 2012 and 1 August 2017 have made a material contribution to the need for the operation proposed by Dr Leong.
….
The Respondent to pay for the Applicant’s left total knee replacement as set out in Dr Leong’s report of 30 October 2017 and reasonably necessary associated expenses.”
[2] Reply, p 1.
This concession was common ground before me for the duration of the matter and was never withdrawn.
The matter…

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 Taylor v Coles Group Ltd

Details

AGLC: Taylor v Coles Group Ltd [2023] NSWPIC 657
Case: [2023] NSWPIC 657
Decision Date: 8 December 2023

CaseChat Overview and Summary

The matter before the Court of Appeal involved a dispute between Taylor and Coles Group Ltd regarding compensation under the Workers Compensation Act 1987. Taylor had sustained three separate left knee injuries while employed by Coles Group Ltd, on 13 June 2012, 25 September 2012, and 1 August 2017. In 2019, the parties acknowledged that each of these injuries had materially contributed to the necessity for a total knee replacement, for which the respondent was liable. Taylor subsequently initiated proceedings to claim section 66 compensation based on these work-related injuries. The Medical Assessor assessed Taylor's impairment at 21%, attributable to the three injuries. The sole issue before the Court was the quantum of section 66 compensation.

The Court was required to determine whether the compensation should be based on the first injury, as argued by the respondent, or the last injury, as claimed by Taylor. The respondent's position was that the first injury should dictate the compensation amount, while Taylor contended that the last injury should be the basis for calculating the compensation. The Court found that the respondent's submissions were inconsistent with previous findings and agreements that each of the three work injuries had materially contributed to the need for surgery, and that the 21% impairment rating was based on the aggregate effect of these injuries. The Court applied the principle established in Ozcan v Macarthur Disability Services Ltd, which held that if the worker based their entitlement on the first injury, the compensation would be calculated based on that injury. However, the Court also noted the observations of Neilson Chief Commissioner in Sidiropoulos v Able Placements Pty Ltd, which applied when the worker based their entitlement on the last injury. Accordingly, the Court ruled in favour of Taylor, determining that the compensation should be based on the last injury.

The Court's decision resulted in Taylor being entitled to section 66 compensation based on the last injury, which occurred on 1 August 2017. The final orders of the Court included a determination that Taylor was entitled to compensation for the last injury, with the quantum of the compensation to be calculated based on that injury. The Court did not specify the exact amount of compensation, leaving it to be determined in further proceedings if necessary. This decision highlights the importance of considering the material contribution of multiple injuries when calculating workers' compensation entitlements under the Workers Compensation Act 1987.

Orders