Gibbs v T Meier-Smith & M.J. Smith - [2025] NSWPIC 315

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gibbs v T Meier-Smith & M.J. Smith [2025] NSWPIC 315
APPLICANT:	Darren Gibbs
RESPONDENT:	T Meier-Smith & M J Smith
MEMBER:	John Wynyard
DATE OF DECISION:	2 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for consequential lumbar condition where claimant alleged his injured right shoulder gave way when he slipped going down stairs at home and fell on his lower back descending another flight on his back; whether claimant’s version supported by contemporaneous or other evidence; Mason v Demasi, Qannadian v Bartter Enterprises Pty Ltd and Etherton v ISS Property Services Pty Ltd considered and applied; Voudouris v TDV Constructions Pty Ltd, Shankar v Ceva Logistics (Australia) Pty Ltd and Transdev NSW South Pty Ltd v Twining considered; Held – contemporaneous clinical notes did not support claimant’s version; claimant failed to meet onus as to consequential condition; remainder of claim did not reach appropriate threshold; award for respondent.
DETERMINATIONS MADE:	The Commission finds: 1. The claim for consequential injury to the lumbar spine is dismissed. 2. The remaining claim for lump sum compensation in respect of the right upper extremity does not reach the s 66(1) Workers Compensation Act 1987 threshold. The Commission orders: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Darren Gibbs, the applicant, brings an action against T Meier-Smith & M J Smith, the respondent, for lump sum benefits pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for injury to the right shoulder and scarring that occurred on 17 October 2020.
Mr Gibbs also sought compensation for a consequential injury to the lumbar spine.
Dispute notices were issued and the matter accordingly came before the Commission.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether Mr Gibbs had suffered a consequential condition to his lumbar spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 23 May 2025 this matter was heard on Teams. Mr Dewashish Adhikary of counsel appeared for the applicant briefed by Mr Jamie Nemme from Messrs LHD Lawyers.
Mr Daniel Stiles of counsel appeared for the respondent brief by Mr Karl Maakasa of Messes McCabe Lawyers. Ms Sarah Cutri appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents by the respondent, registered
12 May…

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: [2025] NSWPIC 315
Decision Date: 2 July 2025

CaseChat Overview and Summary

In Gibbs v T Meier-Smith & M.J. Smith, the respondent, a former employee, sought compensation for a lumbar condition that he claimed resulted from a work-related shoulder injury. The case was heard in the Workers Compensation Court of Victoria. The claimant argued that the lumbar condition was a consequence of a shoulder injury sustained at work, which subsequently led to him slipping and falling down stairs at home, causing further injury to his back. The employer disputed the claimant's account, asserting that the lumbar condition was not work-related and that the claimant had failed to provide adequate evidence to support his claims.

The court was required to determine whether the claimant's version of events was supported by the evidence, specifically whether the lumbar condition was a consequence of the work-related shoulder injury. The court examined the contemporaneous clinical notes and other evidence provided to assess the credibility of the claimant's account. The court applied relevant case law, including Mason v Demasi, Qannadian v Bartter Enterprises Pty Ltd, Etherton v ISS Property Services Pty Ltd, Voudouris v TDV Constructions Pty Ltd, Shankar v Ceva Logistics (Australia) Pty Ltd, and Transdev NSW South Pty Ltd v Twining, to guide its analysis of the evidence and the onus of proof.

The court found that the contemporaneous clinical notes did not support the claimant's account of events. It held that the claimant had not met the onus of proving that his lumbar condition was a consequence of the work-related shoulder injury. Furthermore, the court determined that the remainder of the claimant's compensation claim did not meet the appropriate threshold for liability. Consequently, the court dismissed the claimant's application and ordered the employer to pay the costs of the proceeding.

Orders