Sanfilippo v Plasser Australia Pty Ltd - [2023] NSWPIC 235

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sanfilippo v Plasser Australia Pty Ltd [2023] NSWPIC 235
APPLICANT:	Cosimo Sanfilippo
RESPONDENT:	Plasser Australia Pty Ltd
Member:	John Turner
DATE OF DECISION:	24 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 32A and 37 and Schedule 3, clause 9; applicant disputed work capacity assessment which assessed him with the capacity to work 12 hours per week as a stationary machine operator; “suitable employment”; Wollongong Nursing Home v Deware, Giankos v SPC Ardmona Operations Ltd, Jones v Dunkel, McCabe Terrill Lawyers v A, Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart and Ric Developments t/as Lane Cove Poolmart v Muir applied; Held – the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since 21 June 2022; the applicant has no current work capacity and has had no current work capacity since 21 June 2022.
determinations made:	1. That the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since 21 June 2022. 2. That the applicant has no current work capacity and has had no current work capacity since 21 June 2022. 3. That there is an award for the applicant for weekly benefits as follows: a. $1,458.83 per week from 21 June 2022 to 30 September 2022, pursuant to s 37 of the Workers Compensation Act 1987; b. $1,508 per week from 1 October 2022 to 31 March 2023, pursuant to s 37 of the Workers Compensation Act 1987, and c. $1,570.42 per week from 1 April 2023 to date and continuing, pursuant to s 37 of the Workers Compensation Act 1987. 4. The respondent is to have credit for weekly payments paid.

STATEMENT OF REASONS

BACKGROUND

Cosimo Sanfilippo, the applicant, was employed by Plasser Australia Pty Ltd, the respondent as a welder and boilermaker. The applicant recommenced employment with the respondent in or about June 2019 having previously been employed by them. The applicant’s work duties with the respondent included the repetitive use of grinders. The applicant has worked as a welder, steel fabricator and / or boilermaker for in excess of 30 years.
In the course of his employment with the respondent the applicant noted a pins and needles sensation in both hands which was increasing in severity. The applicant reported the condition to the respondent on or about 6 June 2020. The applicant was diagnosed with bilateral carpal tunnel syndrome.
The applicant made a workers compensation claim in respect to the bilateral carpal tunnel condition for which liability has been accepted. Payments of workers compensation benefits have been made including the payment of weekly benefits compensation.
Whilst in the course of his employment with the respondent on 7 July 2020 the applicant sustained further injury when he tripped and fell. The injuries sustained in the fall…

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 235
Decision Date: 24 May 2023

CaseChat Overview and Summary

In the case of Sanfilippo v Plasser Australia Pty Ltd, the applicant, Sanfilippo, contested a work capacity assessment that concluded he could work 12 hours per week as a stationary machine operator. The dispute was adjudicated by the court under the provisions of the Workers Compensation Act 1987, specifically sections 32A and 37 and Schedule 3, clause 9. Sanfilippo contested the assessment's validity and sought to establish his actual work capacity.

The primary legal issues before the court were whether the assessment accurately reflected the applicant's current work capacity and if suitable employment could be found given the assessed capacity. The court had to interpret relevant statutory provisions and case law, including Wollongong Nursing Home v Deware, Giankos v SPC Ardmona Operations Ltd, Jones v Dunkel, McCabe Terrill Lawyers v A, and Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart and Ric Developments t/as Lane Cove Poolmart v Muir, to determine if the assessment was legally sound and aligned with the applicant's medical condition.

The court examined the evidence and concluded that Sanfilippo does not have the current work capacity to perform as a stationary machine operator, and has not had such capacity since 21 June 2022. The assessment did not align with the applicant's medical condition and was therefore deemed incorrect. Consequently, the court held that Sanfilippo has no current work capacity and has been without such capacity since the specified date.

The court's determination led to the conclusion that the applicant does not have the capacity to work as a stationary machine operator. As a result, the court ruled that Sanfilippo has no current work capacity and has been without such capacity since 21 June 2022. This ruling has significant implications for the applicant's eligibility for workers' compensation and any future employment considerations.

Orders