Gili v Qantas Airways Ltd - [2024] NSWPIC 485

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gili v Qantas Airways Ltd [2024] NSWPIC 485
APPLICANT:	Marcelle Gili
RESPONDENT:	Qantas Airways Limited
MEMBER:	Parnel McAdam
DATE OF DECISION:	2 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant a flight attendant; suffered multiple falls in course of employment with respondent; whether she had suffered a consequential condition in lumbar spine and cervical spine as a result of accepted knee injuries; claim made for assessment of total whole person impairment arising out of different injuries occurring on different dates; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes, Merchant v Shoalhaven City Council and Ozcan v Macarthur Disability Services Ltd considered; Held – applicant suffered a consequential injury to her lumbar spine; applicant did not suffer an injury or consequential condition in cervical spine; applicant could not combine injuries suffered to different knees on different dates for the purpose of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a consequential condition in her lumbar spine as a result of her right knee injury on 15 March 2017. 2. Award for the respondent for cervical spine injury on 15 March 2017. 3. Award for the respondent for consequential condition in the cervical spine as a result of any injury suffered on 14 April 2014, 15 March 2017, 2 December 2019. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury 1: 14 April 2014. (b) Body systems/parts: left lower extremity. (c) Method of assessment: whole person impairment. (d) Date of injury 2: 15 March 2017 and 2 December 2019. (e) Body systems/parts: right lower extremity, lumbar spine. (f) Method of assessment: whole person impairment. 5. The above dates of injury are to be assessed separately. 6. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents, and (c) an Application to Admit Late Documents dated 24 July 2024.

STATEMENT OF REASONS

BACKGROUND

Ms Gilli (the applicant) has worked in the airline industry, as cabin crew, for an extended period. She originally worked for the now defunct Ansett. She has been employed by Qantas Airways Limited (the respondent) since around 2007.
During the course of employment, Ms Gilli injured herself on a number of separate occasions. There is no dispute that the injuries claimed in the Application to Resolve a Dispute (Application) occurred. There is some dispute about the consequences of those injuries, in terms of consequential conditions and body parts that Ms Gilli may have injured.
The main area of dispute is the framing of the claim for lump sum compensation, which is made for 18% whole person impairment. This is said to arise out of three dates of injury pleaded. The applicant claims that the three injuries, to separate body parts, can be…

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: [2024] NSWPIC 485
Decision Date: 2 September 2024

CaseChat Overview and Summary

Gili v Qantas Airways Ltd concerned a claim for workers' compensation by a former flight attendant against her employer, Qantas Airways Ltd, following multiple falls during her employment. The applicant, Ms Gili, argued that she had suffered a consequential condition in her lumbar spine and cervical spine as a result of knee injuries she had previously sustained in the course of her employment. The dispute centered on whether these spinal conditions were related to the knee injuries and, if so, how the resulting whole person impairment should be assessed. The case was heard and determined in the Dust Diseases Tribunal of New South Wales.

The primary legal issues before the Tribunal were whether Ms Gili had indeed suffered a consequential injury to her lumbar spine and cervical spine, and if so, how to properly assess the whole person impairment arising from the different injuries. The Tribunal had to consider the established case law on consequential injuries and whole person impairment, including the decisions in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes, Merchant v Shoalhaven City Council, and Ozcan v Macarthur Disability Services Ltd. The focus was on whether the lumbar spine condition was a consequential injury to the knee injuries and whether the cervical spine condition was related to the knee injuries or a separate issue altogether.

The Tribunal concluded that Ms Gili had suffered a consequential injury to her lumbar spine, which was directly related to the knee injuries she sustained during her employment. However, the Tribunal found that she did not suffer an injury or consequential condition in her cervical spine. Furthermore, the Tribunal held that Ms Gili could not combine the injuries suffered to her knees on different dates for the purpose of whole person impairment assessment. The Tribunal's reasoning was grounded in the principles of causation and the need for a direct link between the consequential injury and the initial injury. The outcome was that Ms Gili's lumbar spine condition was compensable, but her cervical spine condition was not. The Tribunal also ruled that the whole person impairment had to be assessed separately for the knee injuries and the lumbar spine injury, as they occurred on different dates.

The Tribunal's final orders were that Ms Gili was entitled to compensation for the consequential injury to her lumbar spine, but not for the cervical spine condition. The whole person impairment assessment was to be conducted separately for the knee injuries and the lumbar spine injury. The orders provided clarity on the scope of Ms Gili's compensable injuries and the manner in which her whole person impairment would be assessed, aligning with the Tribunal's findings and the relevant legal principles.

Orders