Smith v Toll Pty Ltd - [2022] NSWPIC 63

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Toll Pty Ltd [2022] NSWPIC 63
APPLICANT:	Alison Smith
RESPONDENT:	Toll Pty Ltd
MEMBER:	Deborah Moore
DATE OF DECISION:	11 February 2022
CATCHWORDS:	WORKERS COMPENSATION – Accepted injury to left ankle; worker claimed consequential conditions to lumbar spine and right ankle; evidence both conflicting and not persuasive for a finding of consequential conditions as claimed; Kooragang Cement Pty Ltd v Bates, Comcare v Martin, Grant v Dateline Imports Pty Ltd and Simpson v Ausgrid all considered; Held - worker failed to discharge onus to prove consequential conditions; the assessments of the accepted injury to the left ankle and scarring on their own do not exceed the threshold for permanent impairment compensation; the applicant has no entitlement to lump sum compensation.
DETERMINATIONS MADE:	1. On 4 April 2017 the applicant sustained an injury to her left ankle arising out of and in the course of her employment with the respondent. 2. The applicant has not established that the medical condition in her lumbar spine and right ankle results from the accepted injury to her left ankle on 4 April 2017. 3. The assessments of the accepted injury to the left ankle and scarring on their own do not exceed the threshold for permanent impairment compensation. 4. The applicant has no entitlement to lump sum compensation.

STATEMENT OF REASONS

BACKGROUND

The applicant, Alison Smith, was employed by the respondent, Toll Pty Ltd, as a delivery driver. Her main duties involved loading a truck of up to 60 parcels, delivering the parcels and then picking up parcels.
On 4 April 2017 whilst making a delivery she slipped and fell and fractured her left ankle.
Liability for this injury was accepted by the respondent (a self-insurer) and various payments of weekly compensation and medical expenses were paid
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 12 November 2021 she sought lump sum compensation in respect of her left lower extremity (ankle), scarring, the right lower extremity (ankle) and the lumbar spine.
The right ankle and back injuries were said to have arisen as a consequence of the accepted left ankle injury.
She had in earlier proceedings also claimed an injury to the cervical spine as a consequential injury but this claim was omitted from the current proceedings.
In a s 78 Notice dated 16 December 2019, the insurer denied liability “in respect of any secondary or consequential injuries involving the Right Ankle, Lumbar Spine and Cervical Spine” on the basis of all the available evidence to which I will refer later.

ISSUES FOR DETERMINATION

At the hearing on 4 February 2022 the parties agreed that the only issue to be determined was whether the evidence supported a finding of the consequential injuries as pleaded.
The claim was for 8% whole person impairment (WPI) in respect of the left lower extremity (ankle), 4% WPI of the right lower extremity (ankle), 6% WPI of the lumbar spine 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.

Continue reading Smith v Toll Pty Ltd

Details

AGLC: Smith v Toll Pty Ltd [2022] NSWPIC 63
Case: [2022] NSWPIC 63
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of Smith v Toll Pty Ltd involved the applicant seeking compensation for injuries sustained in the course of employment. The applicant claimed that an accepted injury to their left ankle resulted in consequential conditions affecting their lumbar spine and right ankle. The matter was heard in the Workers Compensation Commission of Queensland. The central legal issue was whether the applicant could prove that the accepted injury to their left ankle caused consequential conditions in other parts of their body, thereby entitling them to additional compensation.

The court examined the evidence provided by the applicant and the employer, noting discrepancies and the lack of persuasive evidence to support the applicant's claims. The court referred to several precedents, including Kooragang Cement Pty Ltd v Bates, Comcare v Martin, Grant v Dateline Imports Pty Ltd, and Simpson v Ausgrid, to understand the criteria for establishing consequential conditions in workers' compensation cases. The court found that the applicant had not discharged the onus of proving the existence of consequential conditions beyond the accepted injury to the left ankle. The assessments of the accepted injury and scarring were also considered, and it was concluded that they did not exceed the threshold for permanent impairment compensation.

Consequently, the court held that the applicant was not entitled to lump sum compensation for the claimed consequential conditions. The decision emphasised the importance of clear and persuasive evidence in establishing additional compensable conditions in workers' compensation claims. The court dismissed the applicant's claim in its entirety, with no entitlement to compensation for the consequential conditions.

Orders