Yu v Ensign Services Pty Ltd - [2024] NSWPIC 172

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yu v Ensign Services Pty Ltd [2024] NSWPIC 172
APPLICANT:	San San Yu
RESPONDENT:	Ensign Services Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits; respondent alleges effects of accepted right shoulder injury have passed, and disputes alleged consequential conditions to the right wrist and hand, cervical spine and a secondary psychological condition; respondent alleges applicant instead demonstrates abnormal illness behaviour; Held – the respondent has the onus of demonstrating the effects of an accepted injury have ceased; Commonwealth v Muratore and University of New South Wales v Brooks referred to; the balance of the medical evidence supports a finding the applicant has suffered post-surgical frozen shoulder and that the effects of her injury are ongoing; the applicant has suffered consequential conditions to her right hand and wrist as a result of her injury; award for the respondent on the claim for consequential condition to the cervical spine; award for the respondent on the claim for secondary psychological condition.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her right shoulder in the course of her employment with the respondent on 2 April 2022. 2. As a result of her injury, the applicant suffered consequential conditions to her right wrist and hand. 3. Award for the respondent on the claims for consequential condition to the neck and secondary psychological condition. 4. At the date of injury, the applicant’s pre-injury average weekly earnings were $1,430 per week. 5. As a result of her injury and consequential conditions, the applicant was and remains totally incapacitated for employment from 25 July 2023 to date and continuing. 6. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,144 per week from 25 July 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

On 2 April 2022, Ms San San Yu (the applicant) was carrying out her duties in the course of her employment with the respondent, Ensign Services Pty Ltd as a laundry worker when she suffered an accepted injury to her right shoulder.
As a result of this injury, the applicant also alleges she suffered consequential conditions to her neck, right wrist and hand, together with a secondary psychological condition. She claims weekly compensation from 25 July 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) at an agreed rate of $1,144 per week, being 80% of her pre-injury average weekly earnings (PIAWE).
The respondent denies liability, alleges the effects of any right shoulder injury have passed and disputes whether the applicant suffered consequential conditions and secondary psychological injury as alleged. The respondent accepted at the hearing that if the applicant was found to have an ongoing right shoulder injury then any argument with respect to incapacity for employment would fall away.

ISSUES FOR DETERMINATION

The parties agree that the following…

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 Yu v Ensign Services Pty Ltd

Details

AGLC: Yu v Ensign Services Pty Ltd [2024] NSWPIC 172
Case: [2024] NSWPIC 172
Decision Date: 9 April 2024

CaseChat Overview and Summary

In Yu v Ensign Services Pty Ltd, the applicant, Ms Yu, sought weekly benefits under the workers compensation scheme, which the respondent, Ensign Services Pty Ltd, disputed. The dispute centred on whether the effects of Ms Yu's accepted right shoulder injury had ceased and whether she had suffered additional injuries. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue was whether the effects of Ms Yu's accepted shoulder injury had ceased and whether she had developed additional injuries, including those to her right wrist and hand, cervical spine, and secondary psychological condition.

The respondent argued that the effects of the shoulder injury had passed and that the applicant exhibited abnormal illness behaviour. Conversely, Ms Yu asserted that she continued to suffer from the effects of her shoulder injury and had developed additional injuries as a result. The Tribunal examined the medical evidence presented by both parties and found that the balance of evidence supported that Ms Yu had post-surgical frozen shoulder and ongoing effects of her injury. The Tribunal also found that she had suffered consequential conditions to her right hand and wrist. However, it dismissed the claims for a consequential condition to the cervical spine and secondary psychological condition, finding insufficient evidence to support these claims.

The Tribunal held that the onus was on the respondent to demonstrate that the effects of the accepted injury had ceased, as established in Commonwealth v Muratore and University of New South Wales v Brooks. As the evidence did not sufficiently support that the effects of the injury had ceased, the Tribunal found in favour of Ms Yu on the ongoing effects of the shoulder injury and the consequential conditions to her right wrist and hand. The Tribunal awarded costs to the respondent on the claims for a consequential condition to the cervical spine and secondary psychological condition.

Orders