Syme v Dentfree NSW Pty Ltd - [2024] NSWPIC 649

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Syme v Dentfree NSW Pty Ltd [2024] NSWPIC 649
APPLICANT:	Kieran Syme
RESPONDENT:	Dentfree NSW Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	22 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum claim relying on disease provisions in section 4(b); the respondent agrees the applicant sustained an injury to his cervical spine but disputes he sustained any injury to his lumbar spine and bilateral shoulders; issue about adequacy of expert’s report; Ly v Jitt Offset Pty Ltd and AV v AW discussed; pursuant to section 4(b)(i) the applicant sustained injury to his lumbar spine with his employment being the main contributing factor to the contraction of disease; Held – award for the respondent in relation to the allegation of injury to the bilateral shoulders; the lump sum claims relating to the cervical spine, lumbar spine and scarring are remitted to the President for referral to Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b)(i) of the Workers Compensation Act 1987 the applicant sustained injury to his lumbar spine with his employment being the main contributing factor to the contraction of disease. 2. Award for the respondent in relation to the allegation of injury to the bilateral shoulders. 3. The respondent agrees the applicant sustained injury to his cervical spine and scarring. 4. The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: Body systems: cervical spine, lumbar spine, and scarring. Date of injury: 26 July 2023 (deemed). Documents to be referred: Application to Resolve a Dispute, Reply and Application to Admit Late Documents dated 28 August 2024.

STATEMENT OF REASONS

BACKGROUND

Kieran Syme, the applicant, was self-employed by the respondent, Dentfree NSW Pty Ltd, as a paintless dent remover for over 30 years. His job required repeated heavy lifting, twisting and bending and he asserts that due to the nature of this work he sustained an injury to his cervical spine, lumbar spine and bilateral shoulders.
Mr Syme’s claim for compensation in these proceedings is confined to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for the above mentioned body systems and scarring with a deemed date of injury of 26 July 2023.
The respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 December 2023 responding to the lump sum claim. It accepted that Mr Syme had sustained an injury to his cervical spine but disputed liability for the lumbar spine and bilateral shoulders relying on the opinion of
Dr Bosanquet that no injury had been sustained to these body parts due to the nature and conditions of his employment, asserting that these “injuries” are degenerative changes which the doctor stated would have occurred at this stage of life regardless of Mr Syme’s employment with the respondent.

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: [2024] NSWPIC 649
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Syme v Dentfree NSW Pty Ltd involved a dispute between the applicant, Syme, and the respondent, Dentfree NSW Pty Ltd. Syme sought a lump sum claim under the provisions of the Workers Compensation Act 1987, claiming injuries to his cervical spine, lumbar spine, and bilateral shoulders. The respondent conceded that Syme sustained an injury to his cervical spine but contested the claims regarding the lumbar spine and bilateral shoulders. The primary legal issue before the court was whether the expert’s report adequately supported Syme's claims concerning the injuries to his lumbar spine and bilateral shoulders.

The court examined the adequacy of the expert’s report in relation to Syme's claims. It referenced the cases of Ly v Jitt Offset Pty Ltd and AV v AW to evaluate the sufficiency of the medical evidence. The court concluded that the report was inadequate to substantiate the claim of injury to the bilateral shoulders, thus granting the respondent's claim in that regard. However, concerning the lumbar spine, the court found that Syme had sustained an injury, with his employment being the main contributing factor to the disease, in accordance with section 4(b)(i) of the Workers Compensation Act 1987. As a result, the lump sum claims relating to the cervical spine, lumbar spine, and scarring were remitted to the President for referral to a Medical Assessor to determine the permanent impairment.

The court's decision involved an intricate analysis of the medical evidence and its alignment with statutory provisions. The court held that while the respondent's liability was established for injuries to the cervical spine and lumbar spine, the lack of sufficient evidence precluded a finding in relation to the bilateral shoulders. This nuanced approach underscored the necessity for comprehensive and substantiated medical reports in workers' compensation claims. The final orders included remitting the claims for the cervical spine, lumbar spine, and scarring to a Medical Assessor for further assessment, while dismissing the claim for the bilateral shoulders.

Orders