Ghilagabar v Kmart Australia Pty Ltd - [2022] NSWPIC 25

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ghilagabar v Kmart Australia Pty Ltd [2022] NSWPIC 25
APPLICANT:	Thomas Ghilagabar
RESPONDENT:	Kmart Australia Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	19 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim; issues in relation to injury; also, application of section 65(2) of the 1987 Act and section 322(3) of the 1998 Act whether injuries could be assessed together for permanent impairment; Held- injury sustained to thoracic spine and right upper extremity (shoulder) pursuant to section 4(b)(ii) of the 1987 Act; these injuries can be assessed together as they arose out of the same incident; injury to bilateral plantar fascia, ankles and sub-talar regions pursuant to section 4(b)(ii) of the 1987 Act did not arise out of the same incident as that of the thoracic spine and right upper extremity (shoulder) and cannot be assessed with those injuries; Ozcan v Macarthur Disability Services [2021] NSWCA 65, Cemco (Australia) Pty Ltd t/as Carralls’ Engineering and Mining v Carrall [2009] NSWWCCPD 76 discussed; injuries to thoracic spine and right upper extremity (shoulder) remitted to President to be referred to Medical Assessor as the lump sum claim for compensation for those injuries exceeded the threshold in section 66(1) of the 1987 Act; date of injury held to be date of lump sum compensation claim, applying SAS Trustee Corporation v O’Keefe [2011] NSWCA 326; the lump sum claim in respect of the injuries to bilateral plantar fascia, ankles and sub-talar regions cannot be referred for assessment of permanent impairment as they do not exceed threshold in section 66(1); Sukkar v Adonis Electric Pty Ltd [2014] NSWCA 459 applied.
DETERMINATIONS MADE:	1. Pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 Mr Ghilagabar sustained injury to his thoracic spine and right shoulder. 2. Pursuant to section 66 (2) of the Workers Compensation Act 1987 and section 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 the injuries to the thoracic spine and right upper extremity (shoulder) arise from the same incident and are to be assessed together for permanent impairment. 3. The date of injury for the injuries to the thoracic spine and right upper extremity (shoulder) is the date of the compensation claim, 23 November 2020. 4. The lump sum claim in relation to injury to the thoracic spine and right upper extremity (shoulder) is remitted to the President for referral to a Medical Assessor to assess permanent impairment. 5. The documents to be referred are to include the Application to Resolve a Dispute with the exception of the report of Dr Pillemer, Reply and the Applications to Admit Late Documents dated 3, 17 and 28 September 2021 together with a copy of this Certificate of Determination/Statement of Reasons. 6. The injury involving bilateral plantar fasciitis, ankles and sub-talar regions arise from a different incident to the injuries to the thoracic spine and right upper extremity (shoulder). 7. The claims for lump sum compensation for injury involving bilateral plantar fasciitis, ankles…

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

Case: [2022] NSWPIC 25
Decision Date: 19 January 2022

CaseChat Overview and Summary

Ghilagabar initiated proceedings against Kmart Australia Pty Ltd in the Workers Compensation Claims Tribunal, seeking compensation for various injuries sustained during his employment. The primary dispute centered on whether certain injuries could be assessed together for permanent impairment under the Workers Compensation Acts. Specifically, Ghilagabar claimed that injuries to his thoracic spine and right upper extremity (shoulder) should be assessed together, as should injuries to his bilateral plantar fascia, ankles, and sub-talar regions. Kmart contested the lump sum claims for compensation, arguing that not all injuries could be assessed together under the relevant legislative provisions.

The court had to determine whether the injuries could be assessed together for permanent impairment and if they exceeded the thresholds set by the Workers Compensation Acts. It was necessary to examine whether the injuries arose from the same incident and if they could be grouped for assessment purposes. The court also had to decide whether the injuries to the thoracic spine and right upper extremity could be assessed together with the injuries to the bilateral plantar fascia, ankles, and sub-talar regions. Additionally, the court needed to consider whether the lump sum claims exceeded the statutory thresholds for referral to a Medical Assessor.

The court found that the injuries to the thoracic spine and right upper extremity (shoulder) arose from the same incident and could be assessed together under section 4(b)(ii) of the 1987 Act. However, the injuries to the bilateral plantar fascia, ankles, and sub-talar regions did not arise from the same incident and could not be assessed together with the other injuries. The court referred the lump sum claim for the thoracic spine and shoulder injuries to the President for assessment by a Medical Assessor, as the claim exceeded the threshold in section 66(1) of the 1987 Act. For the injuries to the bilateral plantar fascia, ankles, and sub-talar regions, the court held that the claim could not be referred for assessment as it did not exceed the statutory threshold. The court also determined the date of injury to be the date of the lump sum compensation claim, following the reasoning in SAS Trustee Corporation v O’Keefe [2011] NSWCA 326.

Orders