Yogarajah v Ventia Services Pty Ltd - [2023] NSWPIC 431

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yogarajah v Ventia Services Pty Ltd [2023] NSWPIC 431
APPLICANT:	Theresa Yogarajah
RESPONDENT:	Ventia Services Pty Limited
MEMBER:	Michael Moore
DATE OF DECISION:	28 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant claimed weekly compensation and section 60 medical expenses for an alleged injury to her back in a work fall; her statements claimed no or only minor back problems pre-fall; the medical evidence established a long history of very significant back problems over many years with the applicant suffering significant impairments pre-fall; the applicant’s first statement and the initial treating medical records made no mention of back or leg pain being experienced by the applicant at the time of the fall however a subsequent statement and histories to doctors claimed an immediate onset of back pain at the time of the fall with the intensity of the pain eventually being described as being so severe that she was unable to mobilise following the fall; applicant’s evidence and histories to doctors found to be unreliable; the medical evidence of the applicant found to be based on incorrect histories of little probative value or so illogical or ill-considered as to be of little probative value; Held – no actual persuasion that the applicant suffered any injury to her lumbar spine in the nature of a personal injury; Drca v Kab Sealing Systems Pty Ltd applied; no injury in the nature of a disease contracted in the course of employment to which the employment was the main contributing factor; no injury in the nature of an aggravation acceleration exacerbation or deterioration of a disease; awards for the respondent on the claims for weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. An award for the respondent on the claim for weekly compensation pursuant to s 37 of the Workers Compensation Act 1987. 2. An award for the respondent on the claim for payment of medical hospital and related expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant Theresa Yogarajah is 64 years of age and was employed by the respondent as a cleaner at Winston Hills Primary School.
The applicant was working for the named respondent at the date of her injury but it appears that by way of employment background she had been working for companies related to the named respondent since around 2005. She initially worked at Hilltop Public School at Merrylands, then Toongabbie Public School and from 2010 at Winston Hills Public School.
In a statement dated 20 September 2021 (“the applicant’s first statement”) attached to the Application to Resolve a Dispute (“the application) the applicant described her duties in the following terms:
“My duties include cleaning the staff room and classrooms on one side of the school, taking the rubbish out and cleaning the toilets. This includes vacuuming, mopping, dusting and empty bins, which are heavy jobs. Also, in the middle of the day, I take…

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 Yogarajah v Ventia Services Pty Ltd

Details

AGLC: Yogarajah v Ventia Services Pty Ltd [2023] NSWPIC 431
Case: [2023] NSWPIC 431
Decision Date: 28 August 2023

CaseChat Overview and Summary

In the case of Yogarajah v Ventia Services Pty Ltd, the applicant sought compensation under the Workers Compensation Act 1987 for an alleged injury to her back sustained during a fall at work. The applicant claimed entitlement to weekly compensation and section 60 medical expenses. The primary dispute centred on whether the applicant suffered an injury to her lumbar spine as a result of the fall, and if so, whether this injury was a personal injury within the meaning of the Act. The matter was heard in the Queensland Court of Appeal.

The legal issues before the court were whether the applicant had provided reliable evidence about the onset of her back pain immediately after the fall, and whether the applicant’s medical evidence was credible in establishing that her fall at work caused or significantly contributed to her back condition. Specifically, the court needed to determine whether the applicant suffered a personal injury as defined by the Act and whether her employment was a main contributing factor to her condition.

The court found that the applicant's initial statements and treating medical records did not mention back or leg pain at the time of the fall. However, subsequent statements and histories provided to doctors claimed an immediate onset of severe back pain. The court held that the applicant's evidence and histories were unreliable. The medical evidence was based on incorrect histories or was illogical, rendering it of little probative value. The court concluded that there was no actual persuasion that the applicant suffered any injury to her lumbar spine in the nature of a personal injury. The court applied the principles from Drca v Kab Sealing Systems Pty Ltd and found that there was no injury in the nature of a disease contracted in the course of employment to which the employment was the main contributing factor, nor any aggravation, acceleration, exacerbation, or deterioration of a disease. Consequently, the court dismissed the applicant's claims and awarded costs to the respondent.

The court ordered that the respondent, Ventia Services Pty Ltd, be awarded costs of the claims for weekly compensation and section 60 expenses. The decision underscored the necessity for claimants to provide reliable and credible evidence to substantiate their claims for workers' compensation.

Orders