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Ferguson v Connemara Jack Pty Limited

Ferguson v Connemara Jack Pty Limited

Case [2025] NSWPICPD 55 28 July 2025

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ferguson v Connemara Jack Pty Limited [2025] NSWPICPD 55
APPELLANT:	Tamika Ferguson
RESPONDENT:	Connemara Jack Pty Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W24054/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	28 July 2025
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal the decision pursuant to s 352(3A) of the 1998 Act. 2. I confirm Orders 1, 2 and 3 of the Certificate of Determination dated 22 October 2024. 3. I revoke Orders 4 and 5 of the Certificate of Determination dated 22 October 2024. 4. The matter is remitted to be heard and determined by another member in accordance with this Decision. 5. I grant leave for the appellant to provide a submission specifying what is sought on the discrete issue of scarring in the referral. I direct that this leave be actioned within seven days of the date of this decision. 6. Leave for the appellant to rely upon an additional ground of appeal is declined.
CATCHWORDS:	WORKERS COMPENSATION – the Member’s treatment of expert and treating medical evidence – held that the Member made a factual error to support a conclusion – nature of appeal under s 352(5) of the 1998 Act – State ofNew South Wales v Culhana [2025] NSWCA 157 considered and applied – rule 67 of the Personal Injury Commission Rules 2021 – denial of procedural fairness not established
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Turner Freeman Lawyers
Respondent:
Ms K Casey, solicitor
Hicksons Lawyers
DECISION UNDER APPEAL:	Ferguson v Connemara Jack Pty Ltd [2024] NSWPIC 592
MEMBER:	Ms D Benk
DATE OF MEMBER’S DECISION:	22 October 2024

INTRODUCTION

On a deemed date of 10 August 2018, Ms Tamika Ferguson (the appellant) suffered injuries in the course of her employment as a chef with Connemara Jack Pty Limited (the respondent).
The respondent accepted liability for the appellant’s diagnosed condition of right De Quervain’s tenosynovitis and right carpal tunnel syndrome.[1] The appellant underwent two surgical procedures on 29 August 2018 and again in October 2018 in the form of tendon release and carpal tunnel release.
[1] Application to Resolve a Dispute (ARD), pp 33–39.
After a decline in the appellant’s symptoms, she claimed consequential conditions of complex regional pain syndrome (CRPS) of the bilateral upper and lower extremities, left De Quervain’s tenosynovitis, as well as cervical and lumbar spine conditions. The respondent issued several notices[2] under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability of the appellant’s consequential conditions.
[2] ARD, pp 8–32.
The respondent ceased payment of weekly benefits upon expiry of 260 weeks and determined that the appellant had not reached a whole person impairment of at least 20% as required by the s 39 of the Workers Compensation Act 1987 (the 1987 Act).[3]
[3] ARD, pp 41–45.
An Application to Resolve a Dispute (ARD) was filed…

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 Ferguson v Connemara Jack Pty Limited

Details

AGLC: Ferguson v Connemara Jack Pty Limited [2025] NSWPICPD 55
Case: [2025] NSWPICPD 55
Decision Date: 28 July 2025

CaseChat Overview and Summary

The matter before the Court of Appeal was an appeal brought by the applicant, Ferguson, against a decision of the respondent, Connemara Jack Pty Limited. The applicant sought to overturn a decision made by the Personal Injury Commission regarding his entitlement to workers' compensation. The Commission had determined that the applicant's claim for additional medical expenses was not supported by the evidence. The applicant's appeal was grounded on the assertion that the Commission had erred in its treatment of expert and treating medical evidence, which, in turn, had led to an incorrect conclusion about his entitlement to compensation. The appeal was brought under section 352(5) of the Workers Compensation Act 1998, and the Court was required to consider whether the Commission had indeed erred in its approach to the evidence and whether procedural fairness had been compromised.

The primary legal issue before the Court was whether the Commission had correctly evaluated the expert and treating medical evidence to determine the applicant's entitlement to compensation. The Court had to determine if the Commission's approach to the evidence was appropriate and if its conclusions were supported by that evidence. Additionally, the Court needed to assess whether the applicant's right to procedural fairness, as outlined in rule 67 of the Personal Injury Commission Rules 2021, had been upheld. The Court examined the application of the decision in State of New South Wales v Culhana, which provides a framework for assessing the correctness of a Commission's decision in the context of workers' compensation appeals.

The Court of Appeal found that the Commission had indeed made a factual error in its treatment of the expert and treating medical evidence, which had influenced its conclusion about the applicant's entitlement to compensation. The Court noted that the Commission had not adequately considered the treating medical evidence, which was critical to the applicant's case. The Court held that the Commission's error was material and affected the outcome of the appeal. Furthermore, the Court found that the applicant had not established that procedural fairness had been denied. Therefore, the appeal was successful on the basis that the Commission's treatment of the evidence was incorrect, but the procedural fairness argument was dismissed.

In conclusion, the Court of Appeal allowed the appeal and remitted the matter to the Commission for redetermination. The Court emphasised the importance of properly evaluating all relevant evidence, particularly treating medical evidence, when making decisions on workers' compensation claims. The Court also reiterated the principles of procedural fairness and the need for Commissions to adhere to these principles when making their decisions. The specific orders made by the Court included a direction for the Commission to reconsider the applicant's claim for additional medical expenses, taking into account the correct treatment of all relevant evidence.

Orders