McDermott v Toll Holdings Ltd - [2025] NSWPIC 175

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McDermott v Toll Holdings Ltd [2025] NSWPIC 175
APPLICANT:	Elyssa Jade McDermott
RESPONDENT:	Toll Holdings Limited
MEMBER:	Fiona Seaton
DATE OF DECISION:	29 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; undisputed left ankle injury; disputed consequential lumbar spine condition; Held – the applicant sustained a consequential lumbar spine condition; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential lumbar spine condition as a result of the accepted left ankle injury on 10 May 2022. The Commission orders: 2. I remit this matter 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: Date of injury: 10 May 2022. Body systems/parts: lower left extremity (ankle) and lumbar spine (consequential injury). Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Elyssa Jade McDermott was employed by the respondent Toll Holdings Limited as a pick-packer from about 2021.
On 10 May 2022 the applicant was working at an E-store when she pulled out a 40kg box. The weight of heavy items inside shifted from the back to the front of the box and it fell on to her left lower leg and ankle.
The applicant reported the injury and liability was accepted on 16 May 2022.
Dispute notices were issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 8 February 2023 regarding the applicant’s entitlement to weekly compensation, and on 27 March 2023 following internal review maintaining the respondent’s work capacity decision.
A s 78 notice issued on 15 May 2023 disputed liability for the applicant’s left ankle and consequential lumbar spine injuries.
The applicant made a claim for lump sum compensation on 12 January 2024 for 13% whole person impairment with respect to her left ankle injury and consequential lumbar spine condition.
A s 78 notice was issued on 10 May 2024 disputing liability for the lump sum claim. The liability dispute for the left ankle and consequential lumbar spine injuries was maintained following internal review on 25 November 2024.
An Application to Resolve a Dispute (ARD) was lodged with the Personal Injury Commission (Commission) on 7 January 2025 claiming lump sum compensation for permanent impairment of the applicant’s left lower extremity and lumbar spine.
At the preliminary conference held on 20 February 2025 the respondent confirmed it accepted liability for the applicant’s left ankle injury.
The dispute was listed for conciliation conference and arbitration hearing on 9 April 2025.

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in…

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: [2025] NSWPIC 175
Decision Date: 29 April 2025

CaseChat Overview and Summary

The case of McDermott v Toll Holdings Ltd was heard in a workers compensation context, involving the applicant, McDermott, and the respondent, Toll Holdings Ltd. The applicant sought a lump sum compensation for permanent impairment under section 66 of the Workers Compensation Act 1987, following an undisputed left ankle injury. However, the consequential lumbar spine condition was disputed by the respondent. The legal issues before the court involved determining whether the applicant had sustained a consequential lumbar spine condition and, if so, how this would affect the compensation claim.

The court examined the evidence and medical assessments provided by both parties. It found that while the left ankle injury was undisputed, there was significant contention regarding the existence and extent of the lumbar spine condition. The court emphasised the need for a thorough medical assessment to ascertain the true nature and extent of the condition. It was held that the applicant had indeed sustained a consequential lumbar spine condition, albeit the specifics of the condition and its impact on the compensation claim required further detailed evaluation.

Given the findings, the matter was remitted to the President for referral to a Medical Assessor. This assessor would provide a detailed report on the lumbar spine condition and its relationship to the original injury, which would then inform the final determination of the compensation claim. The court did not make a definitive ruling on the compensation amount but set the stage for further medical evaluation and subsequent adjudication.

In summary, the court found in favour of the applicant on the issue of the consequential lumbar spine condition and directed that the matter proceed to a Medical Assessor for further assessment. The final compensation amount would be determined based on the findings of this assessor.

Orders