Vercoe v Hammond Care - [2022] NSWPIC 15

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Vercoe v Hammond Care [2022] NSWPIC 15
APPLICANT:	Megan Vercoe
RESPONDENT:	Hammond Care
MEMBER:	Paul Sweeney
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and medical expenses in respect of bilateral sesamoiditis and consequential psychological and weight loss/gastrointestinal conditions; worker asserts that her work as an assistant in nursing 27 hours a week caused or materially aggravated her sesamoiditis; conflicting lay and medical evidence; acceptance of the opinion of treating orthopaedic surgeon; Held - finding that the work aggravated or exacerbated bilateral sesamoiditis and this injury aggravated a pre-existing psychological condition; finding that the worker had not established that her weight loss resulted from injury; award for the worker pursuant to sections 36, 37 and 60 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. During 2020, the applicant suffered injury arising out of and in the course of her employment namely an exacerbation and aggravation of the disease of sesamoiditis. 2. The deemed date of injury for the purposes of section 16 of the 1987 Act is 27 June 2020. 3. The applicant’s employment in 2020 was the main contributing factor to the aggravation of the disease of sesamoiditis. 4. As a result of that injury the applicant has suffered a consequential psychological condition namely a major depressive disorder. 5. The applicant has not established on the balance of probabilities that her weight loss/superior mesenteric artery syndrome results from the injury. 6. As a result of the injury the applicant has been totally incapacitated for work since 27 June 2020. 7. That at all material times the applicant’s preinjury average weekly earnings (PIAWE) was $873.21. 8. The respondent to pay the applicant weekly payments of compensation from 27 June 2020 to date and continuing on the basis of a PIAWE of $873.21 pursuant to ss 36 and 37 of the Workers Compensation Act 1987. 9. Strike out the claim for future medical treatment. 10. Order the respondent to pay the applicant’s hospital and medical expenses in respect of treatment of sesamoiditis and the consequential major depressive disorder, and 11. liberty to apply in respect of calculations et cetera.

STATEMENT OF REASONS

INTRODUCTION

Megan Vercoe (the applicant) was employed at a dementia facility operated by Hammond Care (the respondent) at Cardiff as an assistant in nursing. She worked a permanent part-time roster. In 2020, the applicant developed bilateral foot pain which was diagnosed by her treating doctors as medial sesamoiditis. Subsequently, she developed a depressive illness and significant weight loss.
The applicant alleges that the condition of her feet and her consequential depressive illness and weight loss result from her employment with the respondent. Specifically, she alleges that her transfer from Elberta Cottage to Hopkins Cottage on 3 June 2020 required her to spend more of her work time on her feet. This precipitated her medial sesamoiditis.
The respondent disputes that the applicant’s foot pain relates to her employment. The respondent also denies that the applicant’s…

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

AGLC: Vercoe v Hammond Care [2022] NSWPIC 15
Case: [2022] NSWPIC 15
Decision Date: 10 January 2022

CaseChat Overview and Summary

In the case of Vercoe v Hammond Care, the worker, Ms Vercoe, sought weekly compensation and medical expenses for bilateral sesamoiditis and related psychological and weight loss/gastrointestinal conditions. The dispute arose from Ms Vercoe's claim that her employment as an assistant in nursing, which involved working 27 hours per week, caused or materially aggravated her sesamoiditis. The case was heard in the Dust Diseases Tribunal of New South Wales.

The primary legal issues before the court were whether Ms Vercoe's employment had caused or materially aggravated her bilateral sesamoiditis, and if the aggravation of the sesamoiditis had, in turn, caused or materially aggravated her pre-existing psychological condition. Additionally, the court had to determine if the injury had resulted in weight loss. The evidence presented included conflicting lay and medical testimonies, but the court ultimately accepted the opinion of Ms Vercoe's treating orthopaedic surgeon.

In its decision, the Tribunal found that Ms Vercoe's employment had indeed aggravated or exacerbated her bilateral sesamoiditis. This aggravation also contributed to her pre-existing psychological condition. However, the Tribunal did not find sufficient evidence to support the claim that the injury resulted in weight loss. Consequently, the Tribunal made an award to Ms Vercoe under sections 36, 37 and 60 of the Workers Compensation Act 1987. The specifics of the award, including the amount of compensation and the medical expenses covered, were detailed in the final orders of the Tribunal.

Orders