Kinslow v Hippo Espresso (in liquidation) - [2023] NSWPIC 432

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kinslow v Hippo Espresso (in liquidation) [2023] NSWPIC 432
APPLICANT:	Matthew Kinslow
RESPONDENT:	Hippo Express (In liquidation)
MEMBER:	Jane Peacock
DATE OF DECISION:	30 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Lumbar spine injury (undisputed) and allegation of thoracic spine injury (disputed) and consequential conditions in thoracic spine and cervical spine (disputed); evidence weighed in the balance and on the evidence; awards for the respondent on allegation of thoracic spine injury and consequential condition in cervical spine; Held – award for the applicant on allegation of consequential condition in thoracic spine; lump sum claim and accordingly matter remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) Date of Injury: 23 September 2012; (b) Body systems/parts: lumbar spine and thoracic spine (consequential), and (c) Method of assessment: whole person impairment. 2. The documents to be forwarded to the MA are as follows: (a) The Application to Resolve a Dispute and all documents attached. (b) Application to Admit Late Documents filed by the applicant being Discharge Summary dated 9 April 2016 tendered at the arbitration and to be filed within three days as a late document. (c) The Reply and all documents attached.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, the applicant, Mr Matthew Kinslow (Mr Kinslow) seeks lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injury to his lumbar spine on 23 September 2012. He also seeks lump sum compensation as a result of injury alleged to his thoracic spine on and as a result of alleged consequential condition in his thoracic spine and cervical spine as a result of injury to his lumbar spine on 23 September 2012.
The respondent is Hippo express (In liquidation) ((Hippo). Hippo was insured at the relevant time for the purposes of workers compensation by (the insurer).
Hippo denied liability for the claim resulting from the alleged consequential condition in the cervical spine. Liability for injury to the lumbar spine on 23 September 2021 is accepted.

ISSUES FOR DETERMINATION

Firstly, in respect of the pleadings, the applicant has filed an amended application. The amended application is consented to and the respondent also consents to a further amendment to the amended application to add the words “and thoracic spine” after the words “lumbar spine” in the first sentence of the description of injury.
As per the amendments to the application, Mr Kinslow brings a claim for lump sum compensation as a result of injury to his lumbar spine on 23 September 2012, injury to his thoracic spine on 23 September 2012 and consequential conditions in the thoracic spine and cervical spine as a result of injury on 23 September 2012.
Injury to the lumbar…

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: [2023] NSWPIC 432
Decision Date: 30 August 2023

CaseChat Overview and Summary

Kinslow brought proceedings against Hippo Espresso, in liquidation, seeking compensation for injuries sustained during his employment. The dispute centred around the nature and extent of the injuries he claimed to have suffered. The case was heard in the Federal Circuit Court. The primary issues were whether Kinslow had suffered a thoracic spine injury and whether this injury, along with a cervical spine condition, were consequential to a lumbar spine injury that was undisputed. Additionally, the court had to determine the quantum of compensation if any awards were found in Kinslow's favour.

The court assessed the evidence presented by both parties. Kinslow argued for a thoracic spine injury and consequential cervical spine condition, while Hippo Espresso contested these claims. The court found that while the lumbar spine injury was undisputed, the thoracic spine injury and consequential conditions in the thoracic and cervical spines were not supported by the evidence. However, the court did find that Kinslow had suffered a consequential condition in the thoracic spine. The court determined that the awards for the thoracic spine injury and the cervical spine condition should be made in favour of the respondent, while the award for the thoracic spine consequential condition should be made in favour of Kinslow. The court also noted that the lump sum claim needed to be assessed by a Medical Assessor.

The court remitted the matter to the President for referral to a Medical Assessor to determine the appropriate lump sum compensation for Kinslow's thoracic spine consequential condition. The court's decision provided clarity on the nature of Kinslow's injuries and the respective compensation owed. The final orders will be made once the Medical Assessor provides their assessment.

Orders