Sutton v Legends Australia Holdings Pty Ltd - [2022] NSWPIC 322

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sutton v Legends Australia Holdings Pty Ltd [2022] NSWPIC 322
APPLICANT:	Nigel Sutton
RESPONDENT:	Legend Australia Holdings Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Accepted claim for injury to lumbar spine and further permanent impairment claimed; disputed claim for permanent impairment as a result of consequential gastrointestinal conditions as a result of ingestion of medication for spinal injury and related medical expenses; both parties relied on evidence of independent medical examiners; lack of contemporaneous evidence of date of onset of symptoms with first record five years after injury occurred and which was addressed by the respondent’s qualified medical evidence, but not by the applicant’s qualified medical evidence; consideration of Kooragang v Bates, Murray v Shillingsworth, Seltsam Pty Ltd v McGuiness, EMI (Aust) Ltd v Bes, South Western Sydney Area Health Service v Edmonds Kumar v Royal Comfort Bedding Pty Ltd and Nguyen v Cosmopolitan Homes; Held – the applicant has not satisfied the onus of establishing consequential condition of gastrointestinal system as a result of injury to lumbar spine; award for the respondent with respect to the claim for consequential gastrointestinal conditions; claim for further impairment as a result of injury to the lumbar spine remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	That there is an award for the respondent in respect of the claim for consequential gastrointestinal condition. 2. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the lumbar spine on 3 October 2006. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 11 May 2022 and attachments, and (d) Application to Admit Late Documents dated 25 May 2022 and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nigel Sutton (Mr Sutton) was employed by the respondent, Legend Australia Holdings Pty Limited (Legend) as a storeman.
Mr Sutton sustained an accepted injury to his lower back on 3 October 2006, when he was unloading silicone latex cylinders. He also claims to have developed a consequential gastrointestinal condition.
The applicant submitted a Recurrence Form – Employee (the recurrence form) dated 12 July 2019. The date of recurrence was claimed as ongoing. The symptoms were “ongoing and have never stopped. Getting worse.” They were described as “sharp pain in lower left back and left leg and hip and toes.”
The applicant stated that his ongoing treatment included Cymbalta, Codeine Forte, Endone and Valium.
On 3 March 2020, the respondent’s workers compensation insurer, AAI Limited trading as GIO (GIO), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed liability for payment of weekly expenses and medical expenses. It noted that the applicant’s claim was closed in 2016, following a…

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: [2022] NSWPIC 322
Decision Date: 23 June 2022

CaseChat Overview and Summary

Sutton, the applicant, brought an action against Legends Australia Holdings Pty Ltd, the respondent, seeking workers' compensation for injuries sustained to his lumbar spine and further permanent impairment. The dispute also involved a claim for consequential gastrointestinal conditions resulting from the ingestion of medication for the spinal injury and related medical expenses. Both parties presented evidence from independent medical examiners. The central legal issues before the court were whether the applicant had established a consequential condition of his gastrointestinal system as a result of the lumbar spine injury and the extent of permanent impairment, if any, arising from that injury.

The court meticulously examined the evidence and legal precedents, including cases such as Kooragang v Bates, Murray v Shillingsworth, Seltsam Pty Ltd v McGuiness, EMI (Aust) Ltd v Bes, South Western Sydney Area Health Service v Edmonds, Kumar v Royal Comfort Bedding Pty Ltd, and Nguyen v Cosmopolitan Homes. The court found that the applicant had not satisfied the onus of proving a consequential condition of the gastrointestinal system due to the lack of contemporaneous evidence and the absence of direct linkage to the initial injury. The first record of symptoms appeared five years after the injury, a gap that the respondent's medical evidence addressed, but which was not sufficiently countered by the applicant's evidence. Consequently, the court dismissed the claim for consequential gastrointestinal conditions and awarded costs to the respondent. Regarding the claim for further impairment resulting from the lumbar spine injury, the court remitted it to the President for referral to a Medical Assessor for further evaluation.

The court's final orders included dismissing the applicant's claim for consequential gastrointestinal conditions and awarding costs to the respondent. The claim for further impairment as a result of the lumbar spine injury was remitted to the President for referral to a Medical Assessor. This decision highlights the importance of contemporaneous evidence in establishing causal links in workers' compensation claims.

Orders