Turner v Wickham Freight Lines Pty Ltd - [2024] NSWPIC 156

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Turner v Wickham Freight Lines Pty Ltd [2024] NSWPIC 156
APPLICANT:	Judith Anne Turner
RESPONDENT:	Wickham Freight Lines Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	28 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim in respect of alleged lumbar and left shoulder injury, with an alleged frank incident in January 2014 and an alleged work-related aggravation with a deemed date of injury of 27 November 2019; whether applicant’s employment had connection with the State of New South Wales (section 9AA of the Workers Compensation Act 1987); whether injurious events took place; whether applicant precluded from receiving compensation by virtue of sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; whether applicant suffered incapacity for employment as a result of work injury; whether surgery to lumbar spine was reasonably necessary as a result of a work injury; Held – applicant’s employment was connected with NSW, as she routinely drove her truck between Tamworth and Warwick, where the injury took place, and was based in Tamworth for her employment; the applicant suffered injury to her back and left shoulder as a result of a fall on 1 January 2014 and as a result of an aggravation caused by the nature and conditions of her employment up to 27 November 2019; the defences under sections 254 and 261 fail; permanent impairment claim remitted to the President for referral to a Medical Assessor to determine permanent impairment arising from the injuries; the surgery carried out by Dr Coughlan was reasonably necessary as a result of the applicant’s lumbar spine injury; respondent to otherwise pay the applicant’s section 60 expenses; claim for weekly compensation and any argument concerning aggregation of impairment caused by the two dates of injury are adjourned for further preliminary conference after the issuing of the Medical Assessment Certificate.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her lumbar spine and left upper extremity (shoulder) in the course of her employment with the respondent on 1 January 2014. 2. The applicant suffered an injury by way of aggravation to her lumbar spine and left upper extremity (shoulder) in the course of her employment with the respondent, with a deemed date of injury of 27 November 2019. 3. As a result of the injuries referred to above, the applicant has suffered incapacity for employment. 4. The applicant's pre-injury average weekly earnings were $1,421.57 per week. 5. The surgery to the applicant's left shoulder carried out by Dr Coughlan was reasonably necessary as a result of the applicant's injuries. 6. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 7. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the degree of impairment arising from the following: (a) Dates of injury: 1 January 2014 and 27 November 2019 (deemed); (b) Body systems referred:…

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 Turner v Wickham Freight Lines Pty Ltd

Details

AGLC: Turner v Wickham Freight Lines Pty Ltd [2024] NSWPIC 156
Case: [2024] NSWPIC 156
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the case of Turner v Wickham Freight Lines Pty Ltd, the applicant, Ms Turner, sought workers' compensation for injuries she alleged occurred while she was employed by Wickham Freight Lines. Ms Turner claimed that her employment, which involved driving her truck between Tamworth and Warwick, was connected with the State of New South Wales. She contended that she suffered injuries to her back and left shoulder from a fall on 1 January 2014, and that these injuries were aggravated by the nature and conditions of her employment up to 27 November 2019. The employer, Wickham Freight Lines, contested the claims, arguing that Ms Turner's employment did not meet the jurisdictional requirements under the Workers Compensation Act 1987 and that she was precluded from receiving compensation under sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998.

The court was tasked with determining whether Ms Turner's employment had a sufficient connection with New South Wales to invoke the jurisdiction of the court, whether the injurious events actually took place as alleged, and if Ms Turner was barred from receiving compensation due to the provisions of sections 254 and 261 of the relevant Act. Additionally, the court needed to assess whether Ms Turner suffered incapacity for employment as a result of her work injuries and whether the surgery performed on her lumbar spine was reasonably necessary.

The court found that Ms Turner's employment was indeed connected with New South Wales, as her regular driving routes between Tamworth and Warwick fell within the state, and she was based in Tamworth for her employment. The court also accepted that Ms Turner had suffered injuries to her back and left shoulder from the fall on 1 January 2014, and that these injuries were aggravated by her work conditions up to 27 November 2019. The defences raised by Wickham Freight Lines under sections 254 and 261 of the relevant Act were dismissed by the court. The court ordered that the claim for permanent impairment be remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the injuries. The surgery carried out by Dr Coughlan was deemed reasonably necessary as a result of Ms Turner's lumbar spine injury. The court also ordered Wickham Freight Lines to pay Ms Turner's section 60 expenses. The claim for weekly compensation and any argument concerning the aggregation of impairment caused by the two dates of injury were adjourned for a further preliminary conference after the issuing of the Medical Assessment Certificate.

Orders