Williamson v Coles Group Limited - [2021] NSWPIC 64

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williamson v Coles Group Limited [2021] NSWPIC 64
APPLICANT:	Wendy Williamson
RESPONDENT:	Coles Group Limited
MEMBER:	Ms Carolyn Rimmer
DATE OF DECISION:	7 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker injured her right wrist, right hip and lumbar spine when she fell at work on 22 May 2014 and had suffered consequential condition to the left wrist and later to the cervical spine in a fall on 13 August 2018; dispute as to whether surgery, namely a left‑sided C6/C7 foraminotomy performed by Dr Shivalingam was reasonably necessary as a result of the fall on 8 August 2018; Rose v Health Commission, Diab v NRMA Ltd, Migge v Wormald Bros Industries, Cluff v Dorahy Bros (Wholesale) Pty Ltd, Taxis Combined Services (Victoria) Pty Ltd v Schokman considered and applied; Held- that the surgery carried out with Dr Shivalingam was reasonably necessary as the result of the fall on 13 August 2018.
DETERMINATIONS MADE:	1. Respondent to pay the applicant’s section 60 expenses in respect of treatment proposed by Dr Brindha Shivalingam, namely, a left‑sided C6/C7 foraminotomy and associated expenses as a result of the injury on 22 May 2014 on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

The applicant, Wendy Williamson (Mrs Williamson), was employed by the respondent, Coles Group Limited (the respondent) as a sales assistant. The respondent was self‑insured at all relevant times.
In the course of her employment on 22 May 2014 Mrs Williamson caught her foot in plastic wrapping in the cool room of the store where she was working and fell sustaining an injury to her right wrist, right hip, and lumbar spine. Mrs Williamson later suffered a consequential condition in the left wrist.
On 13 August 2018 after taking some Endone for pain in her wrist, Mrs Williamson fell and sustained an injury to her cervical spine, lumbar spine and coccyx.
Mrs Williamson made a claim for medical treatment in relation to a left‑sided C6/C7 foraminotomy and associated expenses performed by Dr Brindha Shivalingam on 1 May 2019.
The respondent disputed liability in respect of the claim for surgery to the cervical spine in a section 78 notice dated 31 August 2020 and a review notice dated 9 December 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issue remained in dispute:
(a) Whether the surgery performed by Dr Shivalingam was reasonably necessary as a result of the fall on 8 August 2018.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration by telephone on 17 March 2020. Mrs Williamson was represented by Mr Dewashish Adhikary who was instructed by Mr Timothy Gauci of Carroll & O’Dea Lawyers. The respondent was represented by Mr Simon McMahon, who was instructed by Ms Miriam Browne of Turks Legal. Ms Monica Nguyen from the respondent company also attended the conciliation conference and arbitration.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertions made in…

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 Williamson v Coles Group Limited

Details

AGLC: Williamson v Coles Group Limited [2021] NSWPIC 64
Case: [2021] NSWPIC 64
Decision Date: 7 April 2021

CaseChat Overview and Summary

In the case of Williamson v Coles Group Limited, the claimant, Williamson, sought compensation for injuries sustained during her employment. Williamson suffered injuries to her right wrist, right hip, and lumbar spine in a fall at work on 22 May 2014, and later, on 13 August 2018, she suffered consequential conditions to her left wrist and cervical spine in another fall. The dispute centred on whether the surgery performed by Dr Shivalingam, a left-sided C6/C7 foraminotomy, was reasonably necessary as a result of the fall on 13 August 2018. The matter was heard in the Workers Compensation Court of Queensland.

The court was tasked with determining the reasonableness of the necessity for the surgery and whether it was a direct result of the fall on 13 August 2018. This involved examining the medical evidence and the legal principles established in previous cases, such as Rose v Health Commission, Diab v NRMA Ltd, Migge v Wormald Bros Industries, Cluff v Dorahy Bros (Wholesale) Pty Ltd, and Taxis Combined Services (Victoria) Pty Ltd v Schokman. These cases provided guidance on the standard of care and the criteria for determining necessity in workers compensation claims.

The court found that the surgery was reasonably necessary as a result of the fall on 13 August 2018, applying the principles from the cited cases. The evidence indicated that the surgery was a direct consequence of the injuries sustained in the fall and was deemed necessary for the claimant's recovery. The court concluded that the employer was liable for the costs associated with the surgery, as it was reasonably necessary due to the work-related incident.

The final orders of the court mandated that Coles Group Limited, the employer, was to compensate Williamson for the surgery and related expenses. The court's decision affirmed the necessity of the surgery in the context of the work-related injuries and the legal framework governing workers compensation claims in Queensland.

Orders