Pascoe v Aldi Stores (A Limited Partnership) - [2022] NSWPIC 572

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Pascoe v Aldi Stores (A Limited Partnership) [2022] NSWPIC 572
APPLICANT:	Brett Pascoe
RESPONDENT:	Aldi Stores
Member:	Christopher Wood
DATE OF DECISION:	14 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for lump sum benefits for whole person impairment (WPI); whether there was a causal nexus between the accepted left foot injury and the development of a right foot injury; whether both body parts should be part of the referral to the Medical Assessor for assessment of WPI entitlements pursuant to section 66(1) of the Workers Compensation Act 1987; Kooragang Cement Pty Limited v Bates (Kooragang), Sarkis v Summitt Broadway Pty Limited t/as Sydney City Mitsubishi, ACQ Pty Limited v Cook and Aircare Moore Pty Limited v Cook considered and applied; Held – award for the applicant; applying common sense principles in accordance with Kooragang; there was a causal nexus between the applicant’s accepted left foot injury and the development of tendonitis in the applicant’s right foot/ankle.
determinations made:	1. Award for the applicant on the question of whether the applicant suffered an injury to his right foot as a consequence of an accepted injury to his left foot. 2. The Application to Resolve a Dispute is remitted back to the President for referral to a Medical Assessor to determine the level of the applicant’s whole person impairment by reference to injuries to the left and right feet.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Brett Pascoe, worked as an assistant manager with Aldi Stores (the respondent) from 2014.
He says that he started to develop pain in his left foot in or about July 2019 as a consequence of walking long distances during the course of his employment including prolonged standing. The respondent does not contest that he walked considerable distances during the course of his employment as an assistant manager which gave rise to an injury to the left foot.
The respondent’s own medical practitioner, Dr Doig, accepted that the applicant developed a condition specifically left foot planter fasciitis, commonly known as ‘Policeman’s Heal’. This is a well understood condition.
The applicant makes a claim for a lump sum based on whole person impairment (WPI) of 11% arising from injuries to both his conceded left foot injury and an alleged consequential injury to his right ankle, in particular his Achilles heel, in the form of tendonitis.
The respondent says that the applicant has failed to establish a causal connection between his left foot injury and the development of his right foot/ankle condition.

ISSUES FOR DETERMINATION

The parties are agreed that the only issue for determination by the Personal Injury Commission (the Commission) is whether the applicant suffers from an injury to his right foot/ankle as a consequence of his left foot injury.
If the Commission determines that the right ankle injury is a consequence of the applicant’s employment then the matter is to be referred for independent medical assessment to determine the level of WPI by reference to both

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.

Continue reading Pascoe v Aldi Stores (A Limited Partnership)

Details

AGLC: Pascoe v Aldi Stores (A Limited Partnership) [2022] NSWPIC 572
Case: [2022] NSWPIC 572
Decision Date: 14 October 2022

CaseChat Overview and Summary

The case of Pascoe v Aldi Stores (A Limited Partnership) involved a claim by the applicant, Pascoe, for lump sum benefits for whole person impairment (WPI) under the Workers Compensation Act 1987. Pascoe sought to have both his left and right foot injuries considered for WPI assessment, arguing that the right foot injury was a direct consequence of the accepted left foot injury. The matter was heard in the Dust Diseases Tribunal of New South Wales, presided over by a member who was tasked with determining the causal link between the injuries and the entitlement to WPI benefits.

The primary legal issues for the tribunal to resolve were whether there was a causal nexus between the left foot injury and the subsequent development of tendonitis in the right foot/ankle, and whether both injuries should be referred to the Medical Assessor for WPI assessment. The tribunal examined the relevant statutory provisions, particularly section 66(1) of the Workers Compensation Act 1987, which mandates that both body parts be referred for WPI assessment if there is a causal link. The case law of Kooragang Cement Pty Limited v Bates, Sarkis v Summitt Broadway Pty Limited t/as Sydney City Mitsubishi, and Moore Pty Limited v Cook were considered to inform the tribunal's decision.

The tribunal concluded that there was a causal nexus between Pascoe’s accepted left foot injury and the development of tendonitis in his right foot/ankle, applying common sense principles as elucidated in Kooragang. Consequently, the tribunal determined that both the left and right foot injuries should be part of the referral to the Medical Assessor for WPI assessment. The tribunal ruled in Pascoe's favour, awarding him the lump sum benefits for WPI as sought. The decision underscored the importance of establishing a causal link between injuries for WPI assessment and highlighted the tribunal’s commitment to applying relevant case law and statutory provisions to reach a just outcome.

Orders