Huynh v Primo Smallgoods Pty Ltd - [2022] NSWPIC 193

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Huynh v Primo Smallgoods Pty Ltd [2022] NSWPIC 193
APPLICANT:	My Huyen Huynh
RESPONDENT:	Primo Smallgoods Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	2 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation for permanent impairment for undisputed injury to cervical spine, left upper extremity (shoulder), right upper extremity (wrist), scarring (TEMSKI), and to the lumbar spine, disputed by the respondent; applicant relies on the ‘nature and conditions’ of her employment; the respondent asserts that such employment, whilst sufficient to be causative of the undisputed injuries, was not such as to cause injury to the lumbar spine; Held- finding that the arduous, strenuous and repetitive nature of the applicant’s employment causative of the aggravation of the applicant’s pre-existing degenerative condition in the lumbar spine; applicant’s employment was the main contributing factor to injury; award for the applicant in respect of injury to the lumbar spine; matter referred to Medical Assessor for assessment of permanent of all body parts claimed by the applicant.
DETERMINATIONS MADE:	1. The applicant suffered injury to the lumbar spine, in the form of the aggravation of the pre-existing degenerative lumbar spondylolisthesis at the L5/S1 level with associated chronic non-specific left lower limb symptomatology, arising out of or in the course of her employment with the respondent, deemed to have occurred on 20 August 2018. 2. The applicant’s employment with the respondent was the main contributing factor to such injury. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to: (a) the cervical spine; (b) the lumbar spine; (c) the left upper extremity (shoulder): (d) the right upper extremity (wrist), and (e) scarring (TEMSKI). deemed to have occurred on 20 August 2018. 4. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 21 March 2021 with supplementary report of Dr Powell dated 21 March 2021 attached, and (d) this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Ms Huyen Huynh (the applicant/Ms Huynh ) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury deemed to have occurred on 20 August 2018 arising out of or in the course of her employment as a process worker with Primo Smallgoods Pty Ltd (the respondent). Injury to the cervical spine, left upper extremity (shoulder), and lumbar spine, and condition in the right upper extremity (wrist) consequent upon injury to her left upper extremity is claimed. Ms Huynh relies on the repetitive nature of her employment, which involves stretching, bending and prolonged standing, as the cause of her injury and condition. The applicant ceased work for the respondent in June 2019.
The applicant ceased work in June 2019. On 1 August 2019 Dr Richard Powell, orthopaedic surgeon, independently medically examined the applicant…

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.

Keep reading for free

Create a free CaseChat account to read Huynh v Primo Smallgoods Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPIC 193
Decision Date: 2 May 2022

CaseChat Overview and Summary

In the matter of Huynh v Primo Smallgoods Pty Ltd, the applicant, Ms. Huynh, pursued a claim for workers' compensation for permanent impairment arising from injuries to various parts of her body. The injuries included the cervical spine, the left upper extremity (shoulder), the right upper extremity (wrist), and scarring, as well as the lumbar spine. The respondent, Primo Smallgoods Pty Ltd, disputed the claim concerning the lumbar spine injury. The dispute centred on whether the nature and conditions of Ms. Huynh’s employment were sufficient to cause or aggravate the lumbar spine injury.

The court was tasked with determining whether Ms. Huynh's employment was the primary contributing factor to her lumbar spine injury, alongside confirming the causation of the other injuries. The applicant argued that the arduous, strenuous, and repetitive nature of her employment was sufficient to cause the aggravation of her pre-existing degenerative condition in the lumbar spine. The respondent, however, contended that while the employment conditions were causative of the other injuries, they were not the cause of the lumbar spine injury. The court had to weigh the evidence and arguments presented by both parties to ascertain the causation of the injuries and the extent of Ms. Huynh's entitlement to compensation.

Upon reviewing the evidence, the court found that the nature of Ms. Huynh's employment was indeed the main contributing factor to her lumbar spine injury. The arduous, strenuous, and repetitive nature of her work was held to have caused the aggravation of her pre-existing degenerative condition. Consequently, the court awarded Ms. Huynh compensation in respect of the lumbar spine injury. Additionally, the matter was referred to a Medical Assessor to evaluate the extent of permanent impairment for all the body parts claimed by Ms. Huynh. The decision underscored the importance of the nature of employment in determining the compensability of injuries under workers' compensation law.

Orders