Tata v Dyldam Developments Pty Ltd - [2021] NSWPIC 251

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tata v Dyldam Developments Pty Ltd [2021] NSWPIC 251
APPLICANT:	Malcolm Luke Homai Tata
RESPONDENT:	Dyldam Developments Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	16 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly payments of compensation and order for payment of surgery to lumbar spine; respondent admits penetration injury to left thigh but disputes injury to lumbar spine, left hip and left knee; North Coast Area Health Service v Felstead considered; Held – worker sustained injury to his lumbar spine, left hip and left knee in the course of his employment on 1 August 2016; the worker has had no current work capacity since 6 November 2019; proposed surgery results from injury and is reasonably necessary, with order pursuant to section 60(5) of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his lumbar spine, left hip and left knee in the course of his employment with the respondent on 1 August 2016. 2. The applicant has had no current work capacity since 6 November 2019. 3. The L5/S1 discectomy proposed by A/Prof Papantoniou is reasonably necessary as a result of the injury sustained by the applicant on 1 August 2016.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation at the rate of $765.32 per week from 6 November 2019 to date and continuing pursuant to section 37 (3) of the Workers Compensation Act 1987. 2. Pursuant to section 60 (5) and section 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the L5/S1 discectomy proposed by A/Prof Papantoniou, and expenses reasonably incidental to that surgery. 3. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment of the wound to his left thigh and injury to the lumbar spine, left hip and left knee.

STATEMENT OF REASONS

BACKGROUND

The applicant, Malcolm Luke Homai Tata, sustained a penetration wound to his left thigh on 1 August 2016 while employed as a dogman for the respondent, Dyldam Developments Pty Ltd, when he fell onto an exposed steel reinforcing bar at a construction site at Merrylands.
The applicant was taken by ambulance to Westmead Hospital and had the wound sutured.
The applicant was unfit for work for about four months following the injury and was paid workers compensation benefits.
The applicant continued to work for the respondent throughout 2017 and then resigned. The applicant worked for six to nine months with Urban Apartments in 2018 and in the early part of 2019. He claims that he was doing lighter labouring work. The applicant has not worked since 1 April 2019.
The applicant claims that he also sustained an injury to his lumbar spine, left hip and left knee in the incident on 1 August 2016.
The applicant claims as a result of the injury to his left thigh, lumbar spine, left hip and left knee, he has had no current work capacity since 1…

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

AGLC: Tata v Dyldam Developments Pty Ltd [2021] NSWPIC 251
Case: [2021] NSWPIC 251
Decision Date: 16 July 2021

CaseChat Overview and Summary

The applicant in this case sought weekly payments of compensation and an order for the payment of surgery to his lumbar spine. The respondent admitted that the applicant had suffered a penetration injury to his left thigh but disputed that he had sustained an injury to his lumbar spine, left hip, and left knee. The dispute was heard in the Workers Compensation Magistrates Court of New South Wales. The court was required to determine whether the applicant's injuries to his lumbar spine, left hip, and left knee were sustained in the course of his employment and whether the proposed surgery was reasonably necessary.

The court considered the evidence presented by the parties and found that the applicant had sustained injuries to his lumbar spine, left hip, and left knee in the course of his employment on 1 August 2016. The court noted that the respondent had admitted to the penetration injury to the applicant's left thigh but had failed to establish that the other injuries were not work-related. The court found that the applicant had been unable to work since 6 November 2019 and that the proposed surgery was reasonably necessary to address the injuries sustained in the course of employment. The court made an order for the payment of the proposed surgery under section 60(5) of the Workers Compensation Act 1987.

The final orders of the court were that the applicant was entitled to weekly payments of compensation and that the respondent was to pay for the proposed surgery to the applicant's lumbar spine. The court also found that the applicant had been unable to work since 6 November 2019 and that he was entitled to compensation for this period. The court ordered the respondent to pay the applicant's weekly compensation payments from the date of the decision until such time as he was able to return to work or until further order of the court.

Orders