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.
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.
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.
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…
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
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.