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Transdev NSW South Pty Ltd v Twining

Transdev NSW South Pty Ltd v Twining

Case [2024] NSWPICPD 12 19 February 2024

Injury

Assessment of Impairment

Medical Assessor

Independent Medical Examination

Compensation

Workers Compensation Law

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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…

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.

Continue reading Transdev NSW South Pty Ltd v Twining

Details

AGLC: Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12
Case: [2024] NSWPICPD 12
Decision Date: 19 February 2024

CaseChat Overview and Summary

Transdev NSW South Pty Ltd, the employer, sought review of a decision by a Member of the NSW Civil and Administrative Tribunal, which found that the employer was liable for a claim for workers' compensation brought by Mr Twining, the employee. The dispute centred on whether Mr Twining sustained an injury arising out of and in the course of his employment, and if so, whether the Member proceeded on an erroneous basis by finding there were certain conceded consequential conditions. The case was heard in the New South Wales Court of Appeal.

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