Singh v David Jones Pty Ltd - [2023] NSWPIC 319

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Singh v David Jones Pty Ltd [2023] NSWPIC 319
APPLICANT:	Jayson Singh
RESPONDENT:	David Jones Pty Ltd
Member:	Philip Young
DATE OF DECISION:	5 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted claim for cervical and lumbar spine injuries; dispute regarding bilateral shoulder injuries; section 66 claim only; respondent takes issue with “nature & conditions” claim; discussion of Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos; Held – on the basis of the applicant’s statement, deficiencies in the respondent’s Independent Medical Examination report and the opinion of the applicant’s treating specialist that bilateral shoulder injuries established and matter remitted to the President of the Personal Injury Commission for referral to a medical assessor accordingly; claim for total right knee replacement surgery; applicant had prior history of niggling right knee pain due to osteoarthritis then specific incident in the course of her employment; Held – applicant a reliable historian and preponderance of medical opinion supports relationship between current need for surgery and incident at work; section 60 (5) declaration accordingly in favour of the applicant.
determinations made:	The Commission having considered this matter determines as follows: 1. Up until and on 29 July 2019 the applicant in the course of his employment with the respondent suffered injury to his lumbar spine, cervical spine and bilateral upper extremities (shoulders) as well as TEMSKI scarring. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from the injuries described in 1. above. 3. The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply, a copy of the AALD and a copy of these Reasons for Decision.

STATEMENT OF REASONS

BACKGROUND

Jayson Singh (the applicant) is a 35-year-old man who was employed by David Jones Pty Limited (the respondent) as a logistic assistant and forklift driver at the respondent’s warehouse in Silverwater. He alleges a frank injury on 29 July 2019 whilst driving a forklift (injuries to lumbar spine and cervical spine when looking up to move a racking system out of a container). He also alleges injuries to his lumbar spine, cervical spine and bilateral upper extremities (shoulders) being an aggravation (etc) pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 Act (1987 Act) “due to the nature and conditions of his employment”.
The applicant’s claim pursuant to s 66 of the 1987 Act is the cervical spine, lumbar spine, TEMSKI/ scarring, left upper extremity and right upper extremity.

ISSUES

From the respondent’s perspective it is understood that the respondent does not dispute that the applicant injured his lower back. The dispute concerns the remaining body parts.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

This matter came for conciliation and arbitration hearing via MS teams on 9 May 2023. Mr Perry of counsel instructed by Mr Dous, solicitor, appeared for and…

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 319
Decision Date: 5 July 2023

CaseChat Overview and Summary

The applicant, Mr Singh, brought a claim against his employer, David Jones Pty Ltd, seeking compensation for injuries sustained during the course of his employment. The dispute centred around the acceptance of Mr Singh's claim for compensation regarding cervical and lumbar spine injuries and the rejection of his claim for bilateral shoulder injuries. Additionally, Mr Singh sought compensation for a total right knee replacement surgery, which he claimed was necessitated by an incident at work that exacerbated his pre-existing knee condition. The matter was heard by the Personal Injury Commission in Australia.

The central legal issues that the court needed to resolve were whether the applicant's claim for bilateral shoulder injuries was valid and whether the need for the total right knee replacement surgery was directly attributable to the workplace incident. The respondent contested the claim for bilateral shoulder injuries, arguing that the applicant's statement did not sufficiently establish the nature and conditions of the injury. They also questioned the reliability of the applicant's medical evidence and highlighted deficiencies in the Independent Medical Examination report provided by the applicant.

The court found that the deficiencies in the Independent Medical Examination report provided by the respondent, coupled with the opinion of the applicant’s treating specialist, established that the applicant had sustained bilateral shoulder injuries. The court also noted that Mr Singh was a reliable historian and that the preponderance of medical opinion supported the relationship between the current need for surgery and the incident at work. The court relied on the case of Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos to underscore the importance of considering the applicant's statement and medical evidence in totality. Consequently, the court held in favour of the applicant on both claims and remitted the matter to the President of the Personal Injury Commission for referral to a medical assessor for the shoulder injuries and granted the section 60 (5) declaration for the right knee replacement surgery.

The final orders of the court were that the claim for bilateral shoulder injuries be remitted for further assessment and that a section 60 (5) declaration be made in favour of Mr Singh for the total right knee replacement surgery, recognising the work-related exacerbation of his pre-existing knee condition.

Orders