| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12 |
APPELLANT: | Transdev NSW South Pty Ltd |
RESPONDENT: | Danielle Twining |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W4252/22 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 19 February 2024 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 21 December 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – injury – whether Member proceeded on erroneous basis there were conceded consequential conditions – referral of lumbar spine to a Medical Assessor to assess whole person impairment where independent medical examiners assess 0% whole person impairment – Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 discussed and applied – Skates v Hills Industries Limited [2021] NSWCA 142 discussed |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms N Tancred, solicitor | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr T Hickey, counsel | |
| Turner Freeman Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr M Inglis |
DATE OF MEMBER’S DECISION: | 21 December 2022 |
INTRODUCTION
The appeal is from a Certificate of Determination dated 21 December 2022.
The Commission determined:
“1. That the [worker] sustained injury to her right ankle and foot on 9 May 2017 and consequential injuries to the lumbar spine, toes of the right foot and digestive system.
2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1988 [sic] for assessment of whole person impairment as follows:
Date of injury: 9 May 2017
Body systems referred: right lower extremity (foot, ankle and toes); lumbar spine; digestive system, and scarring (TEMSKI).
3. The documents to be reviewed by the Medical Assessor are:
(a)Application to Resolve a Dispute and attached documents, and
(b)Reply and attached documents.”
The employer appeals on the following grounds:
(a) Ground 1: The Member erroneously proceeded on the basis the appellant conceded consequential conditions to the toes (peripheral nerve condition) and the Member erroneously determined the respondent suffered consequential condition to the toes (peripheral nerve condition).
(b) Ground 2: The Member has fallen into error by referring the lumbar spine for assessment of whole person impairment (WPI) where Dr Gehr has assessed 0% WPI for the lumbar spine.
For the reasons that follow I grant leave to appeal and dismiss the appeal. The Determination of the Member is confirmed.
MEMBER’S STATEMENT OF REASONS
The respondent, Danielle Twining, was employed by the appellant, Transdev NSW South Pty Limited, as a Team Leader.
On 9 May 2017 in the course of her employment she was going down a flight of stairs holding onto the rail. As she stepped down onto one of the lower stairs she slipped and fell sideways landing on her right side. She felt pain in the right foot.
Ms Twining claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injuries to the right ankle, right knee, right…
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- AGLC
- Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12
- Case
- [2024] NSWPICPD 12
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Member erred in finding that Mr Twining sustained certain consequential conditions. The court also needed to determine if the Member's finding of whole person impairment was based on an erroneous premise. The court needed to consider the principles of workers' compensation law and the proper approach to assessing whole person impairment.
The court held that the Member had indeed proceeded on an erroneous basis by finding certain consequential conditions. The court held that the Member should have referred the issue of lumbar spine whole person impairment to a Medical Assessor, rather than relying on the findings of independent medical examiners who had assessed 0% whole person impairment. The court cited Shankar v Ceva Logistics (Australia) Pty Limited and Skates v Hills Industries Limited as authority for the proposition that the Member should have followed the correct process in assessing whole person impairment. The court quashed the decision of the Member and remitted the matter back to the Tribunal for rehearing.
The court made no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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