Usher v Coffs Harbour City Council - [2021] NSWPIC 196

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Usher v Coffs Harbour City Council [2021] NSWPIC 196
APPLICANT:	Susan Usher
RESPONDENT:	Coffs Harbour City Council
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	21 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for medical expenses and weekly benefits following flu injection provided by respondent as part of a work health and safety program and which was administered in an appropriate location; issue as to whether this was an injury arising out of and in the course of employment and whether work was a substantial contributing factor; Held- injury both arising from employment and in course of employment and work was a substantial contributing factor; found that the applicant suffered adhesive capsulitis following the injection but not a rotator cuff tear or aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear; not satisfied that the surgery for rotator cuff repair on 16 June 2020 was reasonably necessary as a result of the injury on 9 April 2020.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claim for medical expenses. 2. Respondent to pay the applicant weekly benefits pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $1,083 per week for 14 April 2020. 3. Award for the respondent in respect of the claim for weekly benefits from 16 June 2020 to 27 July 2020.

STATEMENT OF REASONS

BACKGROUND

Susan Usher (the applicant), was employed by Coffs Harbour City Council (the respondent) as an operations supervisor. The respondent was insured by StateCover Mutual Limited (the insurer) at all relevant times.
The applicant alleged that she sustained an injury to her right shoulder in the course of employment on 9 April 2020 when she was administered a flu injection arranged by her employer. She alleged that the injury included the aggravation, acceleration, exacerbation and/or deterioration of a pre-existing condition.
The applicant made a claim for weekly benefits and medical treatment.
The respondent disputed liability in respect of the claim for weekly benefits and medical expenses in a s 78 notice dated 12 June 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered a personal injury arising out of or in the course of employment (s 4 Workers Compensation Act 1987 (the 1987 Act));
(b)    whether employment was a substantial contributing factor to the right shoulder injury (s 9A of the 1987 Act);
(c)    whether any partial or total incapacity for work was the result of a work-related injury to the right shoulder (s 33 of the 1987 Act), and
(d)    whether medical treatment for the right shoulder, including surgery, was reasonably necessary as a result of a work-related injury to the right shoulder.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration by telephone on 31 May 2021. Ms Usher was represented by Mr Craig Tanner who was instructed by Mr Dane Twohill of Carroll & O’Dea Lawyers. The respondent was represented by Mr Paul…

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: [2021] NSWPIC 196
Decision Date: 21 June 2021

CaseChat Overview and Summary

In Usher v Coffs Harbour City Council, the applicant, Usher, sought compensation from Coffs Harbour City Council for medical expenses and weekly benefits after receiving a flu injection provided by the Council as part of a work health and safety program. The injection was administered in an appropriate location, and the dispute centred on whether the injury Usher sustained was both arising out of and in the course of employment, and whether work was a substantial contributing factor. The case was heard in the Dust Diseases Tribunal of NSW.

The legal issues before the court involved determining whether Usher's injury was both an injury arising out of and in the course of employment, and whether the work was a substantial contributing factor to the injury. Specifically, the court had to ascertain if Usher suffered adhesive capsulitis following the injection, and whether this was a result of the flu injection administered by the Council. The court also needed to decide if the surgery for rotator cuff repair was reasonably necessary as a result of the injury on 9 April 2020.

The court found that Usher suffered adhesive capsulitis following the injection, but not a rotator cuff tear or aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear. The court held that the injury was both arising from employment and in the course of employment, and that work was a substantial contributing factor. However, the court was not satisfied that the surgery for rotator cuff repair on 16 June 2020 was reasonably necessary as a result of the injury on 9 April 2020.

The court ordered that the claim for medical expenses and weekly benefits be assessed, taking into account the findings that Usher suffered adhesive capsulitis, but not a rotator cuff tear or aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear. The court also ordered that the claim for surgery for rotator cuff repair be denied, as it was not reasonably necessary as a result of the injury on 9 April 2020.

Orders