Corestaff Australia NSW Pty Ltd v Lashbrook - [2024] NSWPICPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Corestaff Australia NSW Pty Ltd v Lashbrook [2024] NSWPICPD 9
APPELLANT:	Corestaff Australia NSW Pty Ltd
RESPONDENT:	Jack Lashbrook
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W7942/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	9 February 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal the Member’s decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. The Member’s Certificate of Determination dated 17 March 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – it is not always necessary to precisely identify the pathological nature of the injury – Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19 discussed – a delay in report of symptoms is not generally of itself determinative – Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 – appeal from a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Grant, counsel
Hall & Wilcox
Respondent:
Mr D Steiner, counsel
Main Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	17 March 2023

INTRODUCTION AND BACKGROUND

Mr Jack Lashbrook (the respondent) was employed by Corestaff Australia (NSW) Pty Ltd (the appellant) as an electrician. The respondent suffered injury in the course of his employment on 26 March 2020 in an electrical explosion that occurred while he was working on the exhaust jet fans located in the tunnel of Sydney’s West Connex road construction. The respondent claimed injuries to both eyes in the form of arc flashing, a right hip injury, and post-traumatic stress disorder. Liability for each injury was accepted by the appellant. The respondent subsequently asserted injury to his cervical spine, lumbar spine and right shoulder. The appellant denied liability for those injuries.
The respondent commenced proceedings in the Personal Injury Commission (the Commission), claiming lump sum compensation in respect of 21% whole person impairment, attributable to the accepted injuries together with the disputed injuries to his cervical spine, lumbar spine and right shoulder. The dispute came before a Member of the Commission and proceeded to arbitration. The Member determined that she was satisfied that the respondent suffered injuries to his cervical spine, lumbar spine and right shoulder as alleged and remitted the claim for whole person impairment to the President of the Commission for referral to a Medical Assessor.
The appellant appeals the Member’s determination that the respondent’s cervical spine, lumbar spine and right shoulder were injured in the accident.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and…

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.

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Details

Case: [2024] NSWPICPD 9
Decision Date: 9 February 2024

CaseChat Overview and Summary

Corestaff Australia NSW Pty Ltd sought to appeal against a decision of the Workers Compensation Commission of New South Wales, which had found that the company was liable for compensation to Mr Lashbrook, a former employee, who had sustained an injury while in their employment. The company argued that the Commission had erred in its finding that Mr Lashbrook's injuries were work-related. The dispute hinged on the nature of Mr Lashbrook's injuries and the timeliness of reporting those injuries.

The court was required to determine whether the Commission had correctly identified the injuries sustained by Mr Lashbrook and if they were indeed work-related. The company argued that the Commission had not properly identified the specific pathology underlying Mr Lashbrook's injuries and that the delay in reporting the symptoms rendered the claim invalid. The appeal turned on whether the Commission's findings were supported by substantial evidence and if there had been any errors in the interpretation of the evidence.

The court held that it is not necessary for a claimant to precisely identify the pathological nature of the injury in order to establish a compensable injury. The court referred to Kennedy Cleaning Services Pty Ltd v Petkoska and Military Rehabilitation and Compensation Commission v May to support this point. The court also noted that a delay in reporting symptoms does not necessarily invalidate a claim, as per Taylor v J & D Stephens Pty Ltd. The court found that the Commission's determination was supported by substantial evidence and that there had been no error in its approach to the evidence. The court dismissed the appeal, affirming the Commission's decision that Mr Lashbrook's injuries were work-related and that Corestaff Australia NSW Pty Ltd was liable for compensation.

The court did not make any orders regarding costs.

Orders