Ngo v Philip Leong Stores Pty Ltd - [2024] NSWPIC 710

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ngo v Philip Leong Stores Pty Ltd [2024] NSWPIC 710
APPLICANT:	Phi Ngo
RESPONDENT:	Philip Leong Stores Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	18 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to the applicant’s back, right shoulder and right knee due to the nature and conditions of his employment, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which his employment with the respondent was the main contributing factor pursuant to section 4(b)(i); claim for permanent impairment lump sum compensation under section 66, weekly compensation pursuant to sections 33 and 38, and medical and related expenses pursuant to section 60; whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(i); whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(ii); Held – the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(i); the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(ii); general order for medical and related expenses pursuant to section 60; matter referred to approved medical specialist for assessment of whole person impairment; after issue of a Medical Assessment Certificate, matter to be relisted for conference to address the issue of weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(ii) of…

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: [2024] NSWPIC 710
Decision Date: 18 December 2024

CaseChat Overview and Summary

In the matter of Ngo v Philip Leong Stores Pty Ltd, the applicant, Ngo, sought compensation from the respondent, Philip Leong Stores Pty Ltd, for injuries sustained in the course of his employment. The primary injuries claimed were to Ngo’s back, right shoulder, and right knee, with a specific focus on the impact these injuries had on his cervical spine. Ngo argued that these injuries were caused by the nature and conditions of his employment, with a deemed date of injury of 7 July 2021. Ngo sought compensation under various sections of the Workers Compensation Act 1987, including for permanent impairment lump sum, weekly compensation, and medical and related expenses. The legal issues before the court were to determine whether Ngo's cervical spine injuries were caused by his employment and if so, whether these injuries constituted a disease or an aggravation of a pre-existing condition.

The court considered the evidence presented regarding the nature of Ngo's employment and the conditions under which he worked. It was established that Ngo's role involved repetitive and strenuous tasks, which likely contributed to the development of his injuries. The court found that Ngo's employment was the main contributing factor to his cervical spine injuries, which were in the nature of a disease and also an aggravation of a pre-existing condition. The court concluded that Ngo's cervical spine injuries met the criteria under sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987. The court ordered a referral to an approved medical specialist to assess Ngo's whole person impairment. Following this assessment, the matter will be relisted to address the issue of weekly compensation. Additionally, a general order was made for medical and related expenses under section 60 of the Act.

The final orders of the court included a referral to an approved medical specialist for assessment of Ngo's whole person impairment. Once the assessment was completed and a Medical Assessment Certificate issued, the matter was to be relisted for a conference to address the issue of weekly compensation. The court also made a general order for medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987. This decision ensures that Ngo is provided with the necessary medical assessments and entitlements to cover his injuries sustained in the course of his employment.

Orders