Martino v DGL (Aust) Pty Limited - [2022] NSWPIC 575

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Martino v DGL (Aust) Pty Limited [2022] NSWPIC 575
APPLICANT:	Daniel Martino
RESPONDENT:	DGL (Aust) Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	18 October 2022
DATE OF AMENDMENT:	06 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation and medical expenses; the applicant suffered an accepted right ankle injury and accepted consequential conditions to his wrists; he brought proceedings for permanent impairment compensation in respect of those body systems and in relation to a disputed alleged consequential condition to his lumbar spine said to have been caused by altered gait; Held – the applicant suffered a consequential condition to his lumbar spine as a result of altered gait caused by the accepted ankle injury; the contemporaneous evidence and findings on examination of reduced movement in the ankle are consistent with the applicant’s complaints of altered gait over an extended period of time; a common sense evaluation of the medical and lay evidence therefore supports a finding of consequential condition to the lumbar spine; respondent ordered to pay applicant’s reasonably necessary medical expenses on the claimed body systems; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor.

determinations made:

The applicant suffered an injury to his right lower extremity (ankle) in the course of his employment with the respondent on 4 September 2019.
As a result of the injury referred to in (1) above, the applicant sustained consequential conditions to both upper extremities (wrists) and his lumbar spine.
The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect of the body systems referred to in (1) and (2) above.
The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following:
Date of Injury:  4 September 2019
Body Systems Claimed:            right lower extremity (ankle); bilateral upper extremities (wrists) (consequential conditions); lumbar spine (consequential condition); scarring.
Method of Assessment:     Whole person impairment
The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply served under Application to Admit Late Documents dated 8 June 2022 and attachments;
(c)    Applicant’s Application to Admit Late Documents dated 17 August 2022, and
(d)    Allied Health Recovery document dated 27 January 2022, supplementary report of Dr Nair, Health Care Complaints Commission documentation and MRI of the lumbar spine dated 1 December 2021, each of which are contained within the respondent’s application to admit late documents dated 22 August 2022.
The balance of the documents attached to the respondent’s Application to Admit Late Documents dated 22 August 2022 are not to be referred to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

On 4 September 2019, Daniel Martino (the applicant) suffered an injury to his right ankle when he slipped while alighting from a truck in the course of his employment with DGL (Aust) Pty…

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: [2022] NSWPIC 575
Decision Date: 18 October 2022

CaseChat Overview and Summary

In the case of Martino v DGL (Aust) Pty Limited, the applicant, Martino, sought permanent impairment compensation and reimbursement of medical expenses following an accepted right ankle injury and consequential conditions to his wrists. The dispute centred on whether Martino suffered a consequential condition to his lumbar spine, allegedly caused by an altered gait due to the ankle injury. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether Martino's claimed lumbar spine condition was a consequential condition to his accepted ankle injury. Additionally, the court needed to assess whether the medical evidence and lay testimony sufficiently supported the presence of an altered gait and the consequential lumbar spine condition. The court had to balance the contemporaneous evidence against the respondent's arguments and decide on the appropriate compensation for Martino's medical expenses and the referral for permanent impairment assessment.

The court found that Martino had indeed suffered a consequential condition to his lumbar spine as a result of an altered gait caused by the accepted ankle injury. The evidence presented, including medical records and Martino's own testimony, showed a consistent pattern of reduced movement in the ankle and complaints of altered gait over an extended period. The court concluded that this evidence supported a common sense finding of a consequential lumbar spine condition. Consequently, the respondent was ordered to pay Martino's reasonably necessary medical expenses relating to the accepted body systems. The claim for permanent impairment compensation was remitted to the President for referral to a Medical Assessor.

No additional orders were made beyond those outlined in the judgment.

Orders