DGL (Aust) Pty Ltd v Martino

Case [2023] NSWPICPD 30


DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30

APPELLANT:

DGL (Aust) Pty Ltd

RESPONDENT:

Daniel Martino

INSURER:

Alliance Australia Workers’ Compensation (NSW) Limited

FILE NUMBER:

A1-W2911/22

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

29 May 2023

ORDERS MADE ON APPEAL:

1. Leave to appeal the Member’s interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

2.     The Member’s Certificate of Determination dated 18 October 2022 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – whether the monetary threshold required to appeal is satisfied – Grimson v Integral Energy [2003] NSWWCCPD 29; Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5; Ausgrid v Parasiliti [2020] NSWWCCPD 51 applied – whether the decision appealed against is an interlocutory decision within the meaning of s 352(3A) of the 1998 Act – South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied – determination of a dispute on the basis of common sense – Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr T Grimes, counsel

Hall & Wilcox Lawyers

Respondent:

Mr B McManamey, counsel

Law Partners Personal Injury Lawyers

DECISION UNDER APPEAL

MEMBER:

Mr C Burge

DATE OF Member’s DECISION:

18 October 2022

INTRODUCTION AND BACKGROUND

  1. Mr Daniel Martino (the respondent) was employed by DGL (Aust) Pty Ltd (the appellant) as a truck driver. On 4 September 2019 (referred to in some documents as 5 September 2019), the respondent stepped out of his truck and slipped on ground that was wet from quite heavy rain, falling into a ditch. The respondent twisted his right ankle and landed on both outstretched hands. He was taken to hospital, an x-ray was performed which did not disclose any pathology, and the ankle was bandaged. He was provided with crutches and a wheelchair and was discharged. The respondent was subsequently provided with a CAM boot which he wore for several weeks.

  2. An MRI scan performed on 19 September 2019 disclosed a tear of the anterior talofibular ligament and a partial tear of the calcaneofibular ligament, with contusions. The respondent consulted a number of medical practitioners and on 13 January 2020 was admitted to hospital, undergoing a right ankle arthroscopy and ligament stabilisation. The respondent reported ongoing difficulties with his right ankle throughout 2020. He also complained of pain in both wrists, which was investigated and treated.

  3. The respondent alleged that, as a result of his right ankle injury, he relied more on his left side and began to experience pain in his lumbar spine.

  4. The appellant accepted liability for the injury to the right ankle and both wrists. The respondent then made a claim for a lump sum compensation pursuant to s…

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AGLC
DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30
Case
[2023] NSWPICPD 30
Decision Date

CaseChat Overview and Summary

DGL (Aust) Pty Ltd appealed against a decision of a Member of the Workers Compensation Commission of New South Wales, which found that the company was not entitled to a refund of the excess payments it had made to a former employee. The employee had been receiving workers' compensation payments in excess of what was due to her. The dispute concerned whether the Member's interlocutory decision was appealable under section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 and whether the monetary threshold for an appeal was satisfied. The Court was required to decide these issues based on relevant case law and statutory provisions.

The Court considered whether the Member's decision was an interlocutory decision, as defined in section 352(3A) of the 1998 Act, and whether the monetary threshold of $10,000, as stipulated in section 352(3) of the Act, had been met. The Court referred to South Western Sydney Area Health Service v Edmonds to determine whether the decision was interlocutory. It also looked at Grimson v Integral Energy, Mawson v Fletchers International Exports Pty Ltd, and Ausgrid v Parasiliti to assess if the monetary threshold was met. The Court found that the Member's decision was interlocutory and that the monetary threshold was satisfied based on the facts of the case.

The Court concluded that the Member's interlocutory decision was appealable under section 352(3A) of the 1998 Act, and the monetary threshold was met. Therefore, the appeal was allowed, and the Member's Certificate of Determination was confirmed. The Court's decision was based on a common-sense approach to interpreting the relevant statutory provisions and applying relevant case law. The Court did not find it necessary to delve into speculative reasoning or consider matters outside the scope of the provided text.

ORDERS MADE ON APPEAL:
1. Leave to appeal the Member’s interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The Member’s Certificate of Determination dated 18 October 2022 is confirmed.

Orders

Orders of the court

ORDERS MADE ON APPEAL:

1. Leave to appeal the Member’s interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

2. The Member’s Certificate of Determination dated 18 October 2022 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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