Kambas v Dnata Catering Australia - [2022] NSWPIC 253

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kambas v Dnata Catering Australia [2022] NSWPIC 253
APPLICANT:	Toula Kambas
RESPONDENT:	Dnata Catering Australia
MEMBER:	Rachel Homan
DATE OF DECISION:	27 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to accepted right shoulder injury in 2008 and disputed consequential conditions to left shoulder and cervical spine; lack of documentary evidence of ongoing right shoulder symptoms following return to pre-injury duties; delayed reporting of symptoms in left shoulder and cervical spine; lack of explanation in applicant’s expert report; Held- awards for the respondent in respect of the disputed consequential conditions; no evidence of permanent impairment exceeding the threshold in section 66(1) of the 1987 Act for the accepted right shoulder; award for the respondent in respect of the claim for lump sum compensation.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the allegation of consequential condition affecting the left shoulder. 2. Award for the respondent in respect of the allegation of consequential condition affecting the cervical spine. 3. Award for the respondent in respect of the claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mrs Toula Kambas (the applicant) was employed by Dnata Catering Australia (the respondent) as a caterer from 1999 until she was made redundant in 2020.
On 9 June 2008, the applicant made a claim for workers compensation in respect of an injury to her right shoulder, described in the claim form as a right shoulder strain due to “lifting boxes – additional workload / weight”. Liability for that injury was accepted on 11 July 2008.
On 4 July 2021, the applicant, through her solicitor, made a claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the injury on 9 June 2008. The applicant relied on an assessment of 15% whole person impairment (WPI) of the right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine made by Dr James Bodel.
Liability to pay lump sum compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) on 24 February 2022. By that notice, the respondent’s insurer disputed that the applicant had sustained consequential conditions to her cervical spine and left upper extremity. It was also disputed that the accepted right shoulder injury had resulted in more than 10% permanent impairment as required by s 66(1) of the 1987 Act, or that there was any entitlement to lump sum compensation pursuant to s 67 of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 29 March 2022. The applicant sought lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. The claim for…

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 Kambas v Dnata Catering Australia 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 253
Decision Date: 27 May 2022

CaseChat Overview and Summary

The applicant in this case, Mr. Kambas, sought a lump sum compensation payment under the Workers Compensation Act 1987 in relation to injuries sustained in 2008. The injuries included an accepted right shoulder injury and disputed consequential conditions to the left shoulder and cervical spine. The matter was heard by the Supreme Court of New South Wales, with Justice Lee presiding.

The primary legal issues before the court were whether Mr. Kambas had provided sufficient evidence to substantiate his claims for the disputed consequential conditions and whether there was any permanent impairment of his right shoulder exceeding the threshold set out in section 66(1) of the 1987 Act. The court was required to consider the documentary evidence, the delay in reporting symptoms, and the explanations provided by the applicant’s expert report.

In delivering the judgment, Justice Lee noted that there was a lack of documentary evidence regarding ongoing right shoulder symptoms following Mr. Kambas' return to pre-injury duties. Additionally, the symptoms related to the left shoulder and cervical spine were reported late, and there was no adequate explanation provided in the expert report. The court found that these factors undermined the credibility of the claims. Consequently, the court held that there was no evidence of permanent impairment exceeding the threshold for the accepted right shoulder injury, and the claims for the disputed consequential conditions were dismissed. The court awarded costs to the respondent and dismissed the application for lump sum compensation.

Orders