Cager v Smart Traveller Pty Ltd - [2025] NSWPIC 119

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cager v Smart Traveller Pty Ltd [2025] NSWPIC 119
APPLICANT:	Lee Anne Cager
RESPONDENT:	Smart Traveller Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	31 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for surgical treatment to the L3/4 of the lumbar spine claimed to be consequential to a right hand and wrist injury; respondent disputed that the applicant had sustained consequential condition to the L3/4 disc; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Pty Ltd, Nguyen v Cosmopolitan Homes, Jones v Dunkel, Onassis v Vergottis, and Watson v Foxman considered; inconsistencies in evidence both factual and medical; Held – applicant failed to discharge onus; award respondent in respect of the claim of consequential condition to the L3/4 disc of the lumbar spine and claim for surgery.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the Respondent with respect to the claim for a consequential condition to the L3/4 disc of the lumbar spine. A brief statement is attached setting out the Commission’s reasons for the determination.

WORKERS COMPENSATION DIVISION

STATEMENT OF REASONS

BACKGROUND

Lee Ann Cager (the applicant) injured her right hand (wrist and thumb) on 8 November 2011 at work with Smart Traveller Pty Ltd (the respondent). The insurer accepted liability for the wrist and thumb injury and then also a consequential condition to the lumbar spine at the L4/5 level.
In early 2023, the applicant sought surgical approval at the L3/4 level. She claims she suffered injury at this level when she fell from a ladder at home on 28 April 2022 due to weakness of grip arising from her 2011 injury.
The insurer declined liability on the basis it was not satisfied that the requirement for surgery to the L3/4 level was in any way related to the original right wrist injury that occurred on
8 November 2011 or the accepted consequential condition to the L4/5 level.
This prompted application to the Personal Injury Commission (Commission). The matter underwent the usual pathway ultimately proceeding to Arbitration. Mr Barter of counsel instructed by Ms Bergan represented the applicant. Mr Grimes of counsel instructed by Ms Wigham represented the respondent. Ms Wadick was the insurer representative.
The evidence consisted of the Application to Resolve a Dispute (ARD), the Reply and an Application to Lodge Additional Documents (ALAD) filed by the Applicant. The applicant was not cross examined.
The issue for determination is a narrow one, that is, whether the condition and request for surgical decompression at the L3/4 level results from injury that occurred on 8 November 2021.

How did the injury to the L4/5 occur?

The applicant has made three statements relating to the injury on or about 28 April 2022. The first statement was made on 17 November 2023, (approximately 18 months post events leading to this claim), the second on 26 November 2024 and finally on 20 February 2025.
In her statement dated 17 November 2023[1]…

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 Cager v Smart Traveller Pty Ltd

Details

AGLC: Cager v Smart Traveller Pty Ltd [2025] NSWPIC 119
Case: [2025] NSWPIC 119
Decision Date: 31 March 2025

CaseChat Overview and Summary

The applicant in this case sought compensation for surgical treatment related to the L3/4 disc of the lumbar spine, claiming it was a consequence of a right hand and wrist injury. The respondent, Smart Traveller Pty Ltd, disputed the claim, asserting that the condition was unrelated to the original injury. The case was heard in the Workers Compensation Court of New South Wales. The central legal issue before the court was whether the applicant had sustained a consequential condition to the L3/4 disc of the lumbar spine, and if so, whether it was directly attributable to the original injury.

The court considered several precedent cases to assist in its decision-making, including Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Pty Ltd, Nguyen v Cosmopolitan Homes, Jones v Dunkel, Onassis v Vergottis, and Watson v Foxman. These cases were pivotal in establishing the criteria for determining consequential injuries under the Workers Compensation Act 1987. The court found inconsistencies in both the factual and medical evidence presented by the applicant. Despite the applicant's assertions, these inconsistencies were deemed significant enough to undermine the claim. The court concluded that the applicant had not discharged the burden of proof required to establish the causal link between the original injury and the claimed lumbar spine condition.

Accordingly, the court ruled in favor of the respondent, dismissing the applicant's claim for compensation regarding the lumbar spine condition and the associated surgical treatment. The court's decision was grounded in the lack of sufficient evidence to substantiate the applicant's claim, adhering to the principles established in the cited precedents. The final orders of the court were that the respondent was to receive the award in respect of the claim for the consequential condition to the L3/4 disc of the lumbar spine and the claim for surgery.

Orders