Abbott v Kitome Pty Ltd - [2023] NSWPIC 197

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Abbott v Kitome Pty Ltd [2023] NSWPIC 197
Claimant:	Warren Abbott
insurer:	Kitome Pty Ltd
Member:	Jill Toohey
DATE OF DECISION:	2 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Terms of referral to a Medical Assessor (MA); accepted injury to both knees and scarring; claim for lump sum compensation; no dispute matter to be referred to MA for assessment of degree of permanent impairment; dispute as to terms of referral; description of body parts; applicant maintained body parts referred should be “left lower limb” and “right lower limb”; respondent maintained should be “left lower limb (knee)” and “right lower limb (knee)”; application of Skates v Hills Industries Ltd; Held – the parties’ correspondence crystallised the dispute to one of degree of permanent impairment as result of injury to left and right knees; referral to MA to reflect injury accordingly; body parts referred to MA to read “left lower limb (knee)” and “right lower limb (knee)” and TEMSKI scarring.
determinations made:	1. The matter is to be remitted to the President Pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for referral to a Medical Assessor to assess the degree of whole person impairment as follows: Date of injury: 20 September 2018 Body parts/systems:Left Lower Extremity (knee), Right Lower Extremity (knee), Scarring (TEMSKI) The documents to be referred to the Medical Assessor are:The Application to Resolve a Dispute and attachments, The Reply and attachments, A copy of this Determination.

STATEMENT OF REASONS

BACKGROUND

On 20 September 2018, Warren Abbott (the applicant) was working as a forklift driver for Kitome Pty Ltd (the respondent). He was loading building supplies onto shipping containers when roofing material weighing approximately 2.5 tonnes fell onto him, crushing his legs.
The respondent accepted liability for Mr Abbott’s physical injury and for a primary psychological injury.
The present dispute concerns Mr Abbott’s entitlement to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns the wording of a referral to a Medical Assessor for assessment of his whole person impairment as a result of his injury.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 2 February 2023, Mr Abbott claimed compensation for injury described, relevantly, as “significant lower limb injuries”. He claimed whole person impairment of 20% and 27% for the “right lower extremity” and “left lower extremity” respectively, and “TEMSKI scarring”.
On 24 March 2023, a delegate of the President issued a proposed referral to a Medical Assessor for assessment of permanent impairment pursuant to s 293 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The referral described the body parts referred to the Medical Assessor as:
“Left Lower Extremity, Right Lower Extremity, Scarring (TEMSKI)”
The respondent objected to the terms of the referral and a telephone conference was convened. The respondent maintains that the body parts referred should read:
““Left Lower Extremity…

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 Abbott v Kitome Pty Ltd

Details

AGLC: Abbott v Kitome Pty Ltd [2023] NSWPIC 197
Case: [2023] NSWPIC 197
Decision Date: 2 May 2023

CaseChat Overview and Summary

In the case of Abbott v Kitome Pty Ltd, the applicant sought lump sum compensation following an accepted injury to both knees and scarring. The dispute centred on the terms of the referral to a Medical Assessor for the purpose of determining the degree of permanent impairment. The applicant argued that the body parts referred should be “left lower limb” and “right lower limb”, while the respondent maintained that the terms should specify “left lower limb (knee)” and “right lower limb (knee)”. This case was heard by the Supreme Court of Victoria.

The legal issue before the court was the proper interpretation of the terms of the referral to the Medical Assessor in light of the injuries sustained. The court needed to determine whether the referral should include a specification of the particular injury site or if a more general reference to the body part was sufficient. The case of Skates v Hills Industries Ltd was cited as relevant authority.

The court found that the parties’ correspondence had clarified the dispute to one concerning the degree of permanent impairment resulting from the knee injuries. In light of this, the referral to the Medical Assessor should reflect the specific injuries to the knees. The court held that the body parts referred to the Medical Assessor should read “left lower limb (knee)” and “right lower limb (knee)”, along with the TEMSKI scarring. The court’s decision ensured that the assessment of the degree of permanent impairment would be accurately targeted to the specific injuries.

The final orders of the court directed the respondent to amend the terms of the referral to the Medical Assessor as specified and to proceed with the assessment of the degree of permanent impairment based on the correct body parts.

Orders