Woolworths Ltd v Galea

[2020] NSWWCCPD 53

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Ltd v Galea [2020] NSWWCCPD 53
APPELLANT:	Woolworths Ltd
RESPONDENT:	Lillian Galea
INSURER:	Employers Mutual as agent for Woolworths Ltd Workers Compensation Self Insurance Scheme
FILE NUMBER:	A1-845/20
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	28 April 2020
DATE OF APPEAL DECISION:	19 August 2020
SUBJECT MATTER OF DECISION:	Causation: application of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 and Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr Andrew Parker, counsel
Turks Legal
Respondent:
Mr P Perry, counsel
Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s decision dated 28 April 2020 is revoked.
2.     The matter is remitted for redetermination by another Arbitrator.

INTRODUCTION AND BACKGROUND

1. Lillian Galea (the respondent) worked on a permanent part-time basis with Woolworths Ltd (the appellant) as a picker and packer, and forklift driver. She suffered an injury, the occurrence of which is not controversial, when she fell at work on 27 June 2017. She suffered a fracture of the left scaphoid. She initially was treated by Dr Hamsi, who she said was the appellant’s “preferred doctor”. Dr Hamsi referred her to a plastic surgeon, Dr Dowd.[1] She came under the care of a different general practitioner, Dr Lim, from 21 July 2017.[2] Dr Dowd operated on the respondent on 26 July 2017, performing open reduction and internal fixation of the left scaphoid.[3]

   [1] Respondent’s statement 29/11/19 (respondent’s statement), [3]–[7], Application to Resolve a Dispute (ARD), pp 1–3.

   [2] Dr Lim’s notes, ARD, p 57.

   [3] ARD, p 38.

2. The respondent stated that following her left hand injury she had difficulty performing tasks. She had to care for her disabled son which became difficult. She stated that she could not cook proper meals for herself and her son between the time of the injury and the surgery. She felt her son was malnourished. She described this as “a very stressful time”. The respondent stated that she started to develop a rash over her legs, back and buttocks one week after the surgery. The skin condition was diagnosed as lichen planus. It was treated and cleared up with time. The respondent was left with altered pigmentation of the skin, which she described as “very noticeable”, over the back, buttocks, legs and arms where the rash had been. She said that she resumed suitable duties from 26 September 2017, and her pre-injury duties from June 2018.[4]

   [4] Respondent’s statement, [10]–[13].

3. The respondent was assessed by Dr Lai, who specialised in general, plastic and reconstructive surgery, at the request of her solicitors. Dr Lai reported on 7 August 2018. He assessed the respondent as suffering from permanent impairment of 12 per cent, comprised of 4 per cent in respect of the left upper extremity and 8 per cent in respect of scarring.[5] A claim for lump sum compensation was made on this…