Daniel v Flick Anticimex Pty Ltd - [2025] NSWPIC 279

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Daniel v Flick Anticimex Pty Ltd [2025] NSWPIC 279
APPLICANT:	Daniel
RESPONDENT:	Anticimex Pty Ltd
MEMBER:	Mithcell Strachan
DATE OF DECISION:	18 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; consequential condition; Kumar v Royal Comfort Bedding Pty Ltd, and Kooragang Cement Pty Ltd v Bates applied; competing expert evidence; Charles Sturt University v Manning, and Ly v Jitt Offset Pty Ltd applied; Held – applicant has not discharged her onus in establishing a consequential gastrointestinal condition in the form of an acute bowel obstruction requiring emergency hospital admission and surgery.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent with respect to consequential condition to the gastrointestinal system. 2. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 19 September 2017. Body systems referred: cervical spine, left upper extremity (shoulder), and scarring (TEMSKI) Method of assessment: whole person impairment 3. The documents to be referred to the Medical Assessor to assist with their assessment are to include the following: (a) this Certificate of Determination; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained an injury to her cervical spine and left shoulder in the course of her employment with respondent on 19 September 2017. There is no dispute with respect to these injuries.
In treating the accepted injuries the applicant was prescribed pain medication including Panadeine Forte and Naprosyn.
On 5 March 2020 the applicant was admitted to Fairfield Hospital with an acute bowel obstruction. Due to the bowel obstruction and associated complications a colostomy was performed.
The issue for determination by the Personal Injury Commission (Commission) is whether the acute bowel obstruction resulted from the ingestion of pain medication prescribed with respect to the accepted cervical spine and left shoulder injuries.
For the reasons that follow, I am not satisfied that the acute bowel obstruction results from the accepted cervical spine and left shoulder injuries.

ISSUES FOR DETERMINATION

The applicant brings a claim for lump sum compensation for injuries sustained to the left shoulder, cervical spine and consequential gastrointestinal condition and scarring.
There is no dispute with respect to injury to the left shoulder, cervical spine and scarring to the left shoulder.
The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained a consequential gastrointestinal condition resulting from injury to her left shoulder and cervical spine on
19 September 2017.
The parties agree that scarring with respect to the abdomen would only be accessible if the applicant succeeds in establishing the consequential gastrointestinal condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 20 May 2025 in Sydney. Mr Saleh of counsel appeared for the applicant instructed by Mr Nemme and
Ms Wehbe. Mr Parker of counsel appeared for the respondent instructed by…

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 Daniel v Flick Anticimex Pty Ltd

Details

AGLC: Daniel v Flick Anticimex Pty Ltd [2025] NSWPIC 279
Case: [2025] NSWPIC 279
Decision Date: 18 June 2025

CaseChat Overview and Summary

In the matter of Daniel versus Flick Anticimex Pty Ltd, the applicant sought to establish a consequential gastrointestinal condition in the form of an acute bowel obstruction. The dispute was heard in the Dust Diseases Tribunal of New South Wales. The applicant alleged that the bowel obstruction was a consequence of her asbestos-related disease, asbestosis.

The primary legal issue before the Tribunal was whether the applicant had successfully discharged her burden of proving that her bowel obstruction was a consequential condition arising from her asbestosis. The applicant needed to establish the causal link between her asbestosis and the bowel obstruction, considering the competing expert evidence on the matter. The Tribunal examined the relevant legislative framework, including the Workers Compensation Act 1987, and relevant case law, including Kumar v Royal Comfort Bedding Pty Ltd, and Kooragang Cement Pty Ltd v Bates. The Tribunal also considered Charles Sturt University v Manning, and Ly v Jitt Offset Pty Ltd in relation to the evaluation of expert evidence.

The Tribunal found that the applicant had not discharged her onus in establishing a consequential gastrointestinal condition in the form of an acute bowel obstruction. The evidence presented did not sufficiently demonstrate a causal link between the applicant's asbestosis and the bowel obstruction. The Tribunal held that the applicant's evidence was not sufficient to outweigh the competing expert evidence, and therefore, the applicant's claim for compensation was unsuccessful.

The Tribunal dismissed the applicant's claim in its entirety. No orders were made in favour of the applicant, and the applicant was ordered to pay the respondent's costs of the proceeding.

Orders