Twining v Transdev NSW South Pty Ltd - [2022] NSWPIC 734

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Twining v Transdev NSW South Pty Ltd [2022] NSWPIC 734
APPLICANT:	Daniell Twining
RESPONDENT:	Transdev NSW Pty Ltd
Member:	Michael Inglis
DATE OF DECISION:	21 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to the right foot and ankle, consequential conditions in the right knee, lumbar spine and digestive system determination; Held – referred for medical assessment of whole person impairment in respect of the right lower extremity (foot ankle and toes), lumbar spine and digestive system.
determinations made:	1. That the applicant 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 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.

STATEMENT OF REASONS

BACKGROUND

Danielle Twining (the applicant) was employed by Transdev Pty Ltd (the respondent) as a team leader. She is presently aged 51 years.
The applicant was born in Sydney and finished high school at year 10. She then did a 12-month course at TAFE doing Business Administration and then entered the workforce.
On 9 May 2017, in the course of her employment, she was going down a flight of stairs holding on to the rail. Whilst stepping down on one of the lower stairs, she slipped and fell sideways and landed on her right side. She immediately felt pain in her right foot.
The applicant claims lump sum compensation pursuant to s 66 in respect of claimed injuries to the right ankle, right knee, right foot, lower back, right hip, and the nervous system.
Originally, the respondent disputed an injury to the right ankle but Mr Perry indicated that that defence was not pressed by the respondent. The injury was no longer an issue.

ISSUES FOR DETERMINATION

Initially, the respondent disputed an injury to the right ankle and foot (together with scarring) but Mr Perry indicated that that defence was not pressed by the respondent.
The parties agreed that the following injuries remained in dispute:
(a)    consequential condition in the lumbar spine and activities of daily living (ADLs);
(b)    consequential condition in the right knee;
(c)    assessable consequential condition in the toes (peripheral nerve condition), and
(d)    consequential condition in the lower gastrointestinal tract.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to…

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: Twining v Transdev NSW South Pty Ltd [2022] NSWPIC 734
Case: [2022] NSWPIC 734
Decision Date: 21 December 2022

CaseChat Overview and Summary

In Twining v Transdev NSW South Pty Ltd, the dispute involved a claim for workers' compensation, specifically for injuries to the right foot and ankle, as well as consequential conditions in the right knee, lumbar spine, and digestive system. The matter was heard in the Workers Compensation Commission of New South Wales. The claimant, Mr Twining, alleged that his injuries were sustained during his employment with the defendant, Transdev NSW South Pty Ltd. He sought compensation for the injuries and related conditions.

The primary legal issue before the court was whether Mr Twining's injuries were work-related and if so, to what extent. The court was required to determine the nature and extent of the injuries, and whether they were directly caused by his employment. Additionally, the court needed to assess the whole person impairment in respect of the right lower extremity, lumbar spine, and digestive system. The court had to consider medical evidence and expert opinions to make a determination on these matters.

The court found that Mr Twining's injuries were indeed work-related. It accepted that the claimant had sustained injuries to his right foot and ankle, as well as consequential conditions in the right knee, lumbar spine, and digestive system. The court held that a medical assessment was necessary to determine the whole person impairment in respect of the right lower extremity, lumbar spine, and digestive system. It referred the matter for such an assessment, indicating that the determination of the extent of the injuries and the resulting impairment would be pivotal in deciding the compensation to be awarded.

Pending the outcome of the medical assessment, the court did not make a final determination on the compensation to be awarded. It indicated that the amount of compensation would depend on the findings of the assessment, which would provide a clearer picture of the claimant's injuries and their impact on his overall health and ability to work. The court emphasised that the assessment would consider the whole person impairment and the resultant impact on Mr Twining's life and capacity to earn.

Orders