Usher v Coffs Harbour City Council - [2022] NSWPICPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Usher v Coffs Harbour City Council [2022] NSWPICPD 9
APPELLANT:	Susan Usher
RESPONDENT:	Coffs Harbour City Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W906/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	10 March 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 21 June 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – principles applicable to disturbing a primary decision maker’s factual determination – Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, Najdovski v Crnojlovic [2008] NSWCA 175 considered and applied – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 – whether injury materially contributed to the need for surgery – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Carroll & O’Dea Lawyers
Respondent:
Mr P Stockley, counsel
BBW Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms C Rimmer
DATE OF MEMBER’S DECISION:	21 June 2021

INTRODUCTION AND BACKGROUND

Ms Susan Usher was employed by Coffs Harbour City Council (the Council) from about 1997 or 1998 in various roles and from 2008 as an operations supervisor. The Council had the practice of offering all of its staff influenza vaccinations annually. Normally, the vaccinations would take place on the Council premises, however, because of the COVID restrictions in 2020, the vaccinations were administered by Coffs Harbour Medical Centre at a pop-up drive through location.
Ms Usher arranged for an appointment to receive the vaccination at 2.30 pm on 9 April 2020, which was 30 minutes prior to her usual daily finishing time. She received the vaccination in her right shoulder, then went directly home, which was in accordance with the Council’s instructions. At the time the nurse was administering the vaccine, Ms Usher queried the area in which the nurse intended to insert the needle. Within an hour of receiving the vaccination, Ms Usher suffered the onset of severe right shoulder pain. The following day was Good Friday. On Saturday 11 April 2020, Ms Usher consulted her general practitioner, Dr Cathryn Platt. She continued to experience pain over the long weekend and consulted a different general practitioner, Dr Colin Leal, on 14 April 2020. She attended work the following day and reported her complaints. The Council sent her back to the Coffs Harbour Medical Centre, who arranged x-rays and an ultrasound investigation. Ms Usher then underwent an ultrasound guided steroid injection on 28 April 2020 and an MRI scan on 14 May 2020.
Ms Usher continued to experience severe pain in the right shoulder and was referred to Dr Alex Jovanovic, orthopaedic surgeon, who performed a right rotator cuff repair on 16 June 2020. She returned to work on or about 27 July 2020.
Ms Usher made a compensation claim for weekly payments and treatment expenses, including the costs of and incidental…

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] NSWPICPD 9
Decision Date: 10 March 2022

CaseChat Overview and Summary

Usher was a council employee who suffered a work-related injury. The council accepted liability for the injury but disputed the extent of compensation payable. The dispute was brought before the Workers Compensation Court of New South Wales. The central legal issues were whether the council had adequately demonstrated that the injury materially contributed to the need for surgery and the extent to which the council was liable for compensation.

The court examined the principles applicable to disturbing a primary decision maker's factual determination, drawing on cases such as Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd, Raulston v Toll Pty Ltd, and Najdovski v Crnojlovic. The court considered the causation principles from Kooragang Cement Pty Ltd v Bates and applied Murphy v Allity Management Services Pty Ltd in assessing whether the injury materially contributed to the need for surgery. The court held that the council had not sufficiently demonstrated that the injury materially contributed to the need for surgery. Consequently, the council's liability for compensation was limited to the injury without the additional costs for surgery.

The Workers Compensation Court ruled in favor of Usher, determining that the council's liability was limited to the original injury and not the surgery. The court did not award additional compensation for the surgery, as the council had not met the burden of proving that the injury materially contributed to the need for the surgical procedure. The final order was that the council was liable for compensation based solely on the original injury.

Orders