Toprak v Payless Shoes Pty Ltd - [2022] NSWPIC 448

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Toprak v Payless Shoes Pty Ltd [2022] NSWPIC 448
APPLICANT:	Serap Toprak
RESPONDENT:	Payless Shoes Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	9 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation in respect of injuries caused by falls for which the applicant had not sought medical treatment while employed and by the nature and conditions employment; finding that the applicant suffered injury to her lumbar spine as result the nature of the employment; finding that she had not discharged the onus of establishing injury caused by the falls; Held — decline to refer the matter to an Medical Assessor as worker’s assessment of back impairment did not surpass the section 66 threshold of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her lumbar spine will arising out of and in the course of employment on and before 1 October 2017 namely an aggravation of a degenerative condition of low back. 2. The applicant’s employment was a substantial factor to the injury. 3. The applicant has not established on the balance of probabilities that she suffered injury to her right knee, right wrist/elbow or left ankle arising out of or in the course of employment. 4. As there is no assessment of whole person impairment in respect of the back which surpasses the s 66 threshold decline to remit the matter to the President for referral to a Medical Assessor to assess a medical dispute.

STATEMENT OF REASONS

BACKGROUND

Serap Toprak (the applicant) worked for Payless Shoes Pty Ltd (the respondent) between 1 January 2002 and 1 October 2017 when the company ceased to trade. She has not worked since that time. She alleges that during her employment with the respondent she sustained injuries to her lumbar spine, neck, right knee and left leg.
By a s 78 Notice the respondent’s insurer disputed that the applicant suffered injury in the course of her employment or, alternatively, that the employment was a substantial contributing factor to these injuries in accordance with s 9A of the Workers Compensation Act 1987 (the 1987 Act). It also disputed that the applicant had an entitlement to weekly compensation or to medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

When the matter came on for conciliation and arbitration on 28 July 2022, Mr Curran of counsel represented the applicant and Mr Grant of counsel represented the respondent. While Mr Curran indicated a willingness to negotiate, I was informed by Mr Grant that his client was not prepared to make any offer of settlement.
By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. The “Injury description” in the Application to Resolve a Dispute (the Application) is as follows:
“2004, 2010, late-2016 and nature and conditions from 2002-2017 Lumbar spine, right arm, right leg, left leg, right knee, neck, right ankle”
The…

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 448
Decision Date: 9 August 2022

CaseChat Overview and Summary

Toprak v Payless Shoes Pty Ltd involved a claim for permanent impairment compensation by the applicant, who alleged injuries from falls and the nature of her employment. The case was heard in the Workers Compensation Registry of the Federal Circuit Court of Australia. The applicant sought compensation for injuries sustained from falls while employed and due to the conditions of her employment, specifically lumbar spine injuries.

The court was tasked with determining whether the applicant had established that her injuries were caused by the falls and whether she had incurred a permanent impairment. The applicant argued that the cumulative effect of her work-related injuries resulted in a permanent impairment, while the employer contended that the applicant had not proven the causation of her injuries and that her assessment did not meet the statutory threshold for referral to a Medical Assessor.

The court found that the applicant had suffered an injury to her lumbar spine as a result of her employment, but she had not discharged the onus of proving that the falls caused the injury. The court also determined that the applicant's assessment of her back impairment did not surpass the statutory threshold for referral to a Medical Assessor under section 66 of the Workers Compensation Act 1987. Consequently, the court declined to refer the matter to a Medical Assessor.

As a result of the court's findings, the applicant's claim for permanent impairment compensation was dismissed. The court did not order any referral to a Medical Assessor, as the applicant's assessment of her back impairment did not meet the required threshold.

Orders