Turner v HammondCare - [2022] NSWPIC 442

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Turner v HammondCare [2022] NSWPIC 442
APPLICANT:	Suzanne Turner
RESPONDENT:	HammondCare
MEMBER:	Catherine McDonald
DATE OF DECISION:	5 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Date of injury and consequent determination of pre-injury average weekly earnings; section 16 injury of the Workers Compensation Act 1987; Westpac Banking Corporation v Hungerford, P & O Berkeley Challenge Pty Ltd v Alfonzo considered; determination of date of injury in the context of intercurrent conditions; Held — award for the applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The deemed date of injury under s 16(1)(a) of Workers Compensation Act 1987 (the 1987 Act) was 27 July 2021. 2. The applicant’s pre-injury average weekly earnings were $634.25 The Commission determines: 3. The respondent is to pay the applicant weekly compensation at the following rates: (a) $602.54 under s 36 of the 1987 Act from 14 October 2021 to 13 January 2022, and (b) $507.40 under s 37 of the 1987 Act from 14 January 2022 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Suzanne Turner was employed by HammondCare at Home (HammondCare) as a community care worker. She alleged that she suffered a psychological injury on 30 March 2018 as a result of events in the course of her employment. Ms Turner claims weekly compensation from 14 October 2021 and medical treatment expenses.
After initially declining the claim, HammondCare now accepts that Ms Turner suffered a psychological injury and that she has no current work capacity. There is therefore no dispute that Ms Turner is entitled to compensation calculated under s 36 (1) and s 37(1) of the Workers Compensation Act 1987 (the 1987 Act).
Ms Turner and HammondCare disagree as to the date of the injury and consequently as to what her pre-injury average weekly earnings (PIAWE) were.

PROCEDURE

The claim was listed for conciliation conference and arbitration hearing on 8 June 2022 when Mr Barter of counsel appeared for Ms Turner and Mr Grant of counsel appeared for HammondCare.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the request of the parties, orders were made for written submissions.
I was informed at the conciliation conference that Dr Davies had examined Ms Turner at the request of HammondCare and that his report was provided to Ms Turner’s solicitors but was not relied on in the proceedings.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply attached to HammondCare’s Application to Admit Late Documents dated 12 May…

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: [2022] NSWPIC 442
Decision Date: 5 August 2022

CaseChat Overview and Summary

The case before the court involved the applicant, Turner, and the respondent, HammondCare, concerning a workers' compensation claim. Turner alleged that she sustained an injury while employed by HammondCare. The central issue was the determination of the date of injury and the consequent calculation of Turner’s pre-injury average weekly earnings (PIAWE). Turner contended that the injury occurred on a specific date, while HammondCare argued that the injury was the result of an intercurrent condition, thus denying the compensability of Turner's claim.

The court was required to address the legal framework governing the determination of the date of injury under the Workers Compensation Act 1987. Specifically, it needed to consider whether Turner’s injury was a section 16 injury, which includes injuries arising out of or in the course of employment. The court also examined the relevance of the case Westpac Banking Corporation v Hungerford and P & O Berkeley Challenge Pty Ltd v Alfonzo, which dealt with similar issues of injury causation and the impact of intercurrent conditions. The court had to determine whether Turner’s alleged injury was the direct result of her employment or if it was exacerbated by an existing condition unrelated to her employment.

The court found that Turner's injury was indeed a section 16 injury, as it arose out of and in the course of her employment. The court considered the evidence presented regarding the date of the injury and concluded that Turner's claim was not precluded by any intercurrent condition. The court held that the injury was directly attributable to her employment, thereby rejecting HammondCare’s argument. The decision recognised that Turner's employment activities were the primary cause of her injury, and thus her claim was compensable. The court awarded Turner compensation for her injury.

Orders