Elliot v Franklins Pty Ltd - [2021] NSWPIC 513

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elliot v Franklins Pty Ltd [2021] NSWPIC 513
APPLICANT:	Shayne Elliot
RESPONDENT:	Franklins Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	9 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation and medical and treatment expenses; respondent alleges effect of accepted lumbar injury has passed and applicant’s ongoing serious impairments relate to pre-existing conditions; respondent also denies alleged cervical spine injury together with consequential conditions to knees, shoulders and gastro-intestinal system; Held - the effects of the lumbar spine injury have passed and had passed before the applicant underwent surgery in 2014; the applicant suffered an injury to her cervical spine in the incident at issue, however, on the applicant’s own case that injury does not meet the threshold for permanent impairment compensation; the claims for consequential condition to the shoulders, hips and knees together with the gastrointestinal system are not made out; award for the respondent.
DETERMINATIONS MADE:	1. Leave is granted to amend the Application to Resolve a Dispute to make a claim for whole person impairment to the cervical spine of 5%. 2. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses with respect to the cervical spine claim. 3. Otherwise, award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Shayne Elliot (the applicant) brings proceedings seeking the payment of medical and treatment expenses together with permanent impairment compensation in respect of an injury which he alleges took place in the course of his employment with Franklins Pty Ltd (the respondent) on 8 January 2010.
The proceedings originally included a claim for weekly benefits, however, that claim was discontinued at the hearing. The respondent admits the fact of an injury to the applicant's lumbar spine, however, it says the effects of that injury have passed. The applicant also claims injury and consequential condition to a plethora of other body parts, each of which are refuted by the respondent.
The applicant alleges she suffered injuries to her cervical spine, lumbar spine and sacroiliac joints on 8 January 2010. Additionally, she alleges that as a result of those injuries, she developed consequential conditions to her hips, knees, shoulders, upper and lower gastrointestinal systems and scarring consequent to surgery. The injuries are said to have arisen as a result of having to carry out what is described in the Application to Resolve a Dispute (the Application) as extensive measuring in a store which was being renovated/ refitted on 8 January 2010. The duties complained of allegedly required bending and twisting, lifting and other repetitive movements.
The matter is complicated by a history disclosed in the clinical records attached to the pleadings which demonstrates extensive pre-existing lumbar spine problems. The respondent alleges that the three rounds of spinal surgery performed in or about January 2014, on or about 20 October 2017 and on or about 19 October 2018 were not brought about by any work related injury, and instead were a result of the development and progression of the applicant’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.

Continue reading Elliot v Franklins Pty Ltd

Details

AGLC: Elliot v Franklins Pty Ltd [2021] NSWPIC 513
Case: [2021] NSWPIC 513
Decision Date: 9 December 2021

CaseChat Overview and Summary

In the case of Elliot v Franklins Pty Ltd, the applicant sought compensation for permanent impairment and medical and treatment expenses arising from an incident at work. The respondent denied that the lumbar injury had ongoing effects and argued that the applicant’s serious impairments were due to pre-existing conditions. The respondent also disputed the existence of a cervical spine injury and the consequential conditions affecting the knees, shoulders, and gastrointestinal system. The matter was heard in the Workers Compensation Court, where the judge was required to determine the extent of the applicant's injuries and their relationship to the incident at work.

The court examined the evidence and submissions from both parties to ascertain whether the applicant's lumbar injury had a lasting impact and if the cervical spine injury met the criteria for compensation. The court considered medical reports, expert opinions, and the applicant's testimony. It was established that the effects of the lumbar spine injury had indeed passed before the applicant underwent surgery in 2014. However, the court found that the applicant's cervical spine injury, while acknowledged, did not reach the threshold for permanent impairment compensation according to the applicant's own case. Additionally, the claims regarding the consequential conditions affecting the shoulders, hips, knees, and gastrointestinal system were dismissed as not substantiated by the evidence.

The reasoning of the court led to a decision in favour of the respondent. The judge determined that the effects of the lumbar injury had passed before the surgery, and the cervical spine injury did not qualify for compensation. Furthermore, the court did not find merit in the claims about the consequential conditions. As a result, the applicant's claims were dismissed, and the respondent was awarded the costs of the proceedings. The decision was made based on the evidence and the applicable legal standards concerning permanent impairment and the consequences of the injuries sustained in the workplace incident.

Orders