Agang v Telum Contract Labour Hire Pty Ltd - [2023] NSWPIC 233

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Agang v Telum Contract Labour Hire Pty Ltd [2023] NSWPIC 233
APPLICANT:	Deng Agang
RESPONDENT:	Telum Contract Labour Hire Pty Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	23 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; liability for injury to cervical spine accepted; applicant also claimed to have sustained injury to left shoulder; issue as to whether symptoms in applicant’s left shoulder were the result of radicular symptoms from his cervical spine, or the result of a discrete injury to his left shoulder; consideration of Nguyen v Cosmopolitan Homes; Held – award for respondent for injury to left shoulder; matter remitted to President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as a result of injury to cervical spine.
determinations made:	1. There is an award for the respondent for the claim for injury to the left shoulder. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 1 October 2022 – personal injury. (b) Body system/parts: cervical spine. (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 18 April 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Deng Agang (Mr Agang), was employed by the respondent, Telum Contract Labour Hire Pty Ltd (Telum), as a crane operator/labourer.
Mr Agang sustained an injury to his cervical spine on a date that has been variously claimed to be 18 March 2019, 21 March 2019, and due to the nature and conditions of his employment, while lifting, carrying, and stacking timber. He also claims to have sustained an injury to his left shoulder.
By letter dated 1 October 2022, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed the sum of $60,070 in respect of 24% whole person impairment (WPI) as a result of injury to his cervical spine and left shoulder on 21 March 2019 (deemed).
On 25 January 2023, the respondent’s insurer, Insurance and Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ICare disputed that Mr Agang had sustained injury to his left shoulder arising out of or in the course of his employment with the respondent. It advised that an offer of settlement in relation to permanent impairment as a result of the accepted injury to his cervical spine would be made under separate cover.
By letter dated 25 January 2023, the solicitors for the respondent advised the applicant’s solicitors that they were instructed…

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 Agang v Telum Contract Labour Hire Pty Ltd

Details

AGLC: Agang v Telum Contract Labour Hire Pty Ltd [2023] NSWPIC 233
Case: [2023] NSWPIC 233
Decision Date: 23 May 2023

CaseChat Overview and Summary

Agang, an applicant, sought compensation for permanent impairment against Telum Contract Labour Hire Pty Ltd, the respondent. The applicant claimed to have sustained injuries to his cervical spine and left shoulder while employed by the respondent. The primary dispute centred on whether the symptoms experienced in the applicant’s left shoulder were due to radicular symptoms stemming from the cervical spine injury, or if they resulted from a separate injury to the left shoulder. The matter was heard and determined in the New South Wales Civil and Administrative Tribunal.

The legal issues before the court included determining the origin of the left shoulder symptoms and whether they were attributable to the cervical spine injury or a separate shoulder injury. The court was required to consider the medical evidence presented by both parties and assess the relevant legal principles, particularly those outlined in Nguyen v Cosmopolitan Homes, which dealt with similar issues of causation and attribution of injuries. The court had to decide if the left shoulder injury was a consequence of the cervical spine injury or if it constituted a distinct injury requiring separate compensation.

The court found that the left shoulder symptoms were the result of a discrete injury separate from the cervical spine injury. This conclusion was based on the medical evidence and the principles established in Nguyen v Cosmopolitan Homes. Consequently, the court awarded the applicant compensation for the injury to the cervical spine but denied compensation for the left shoulder injury as it was deemed to be a consequence of the cervical spine injury. The matter was remitted to the President of the Personal Injury Commission for a referral to a Medical Assessor to assess the permanent impairment resulting from the cervical spine injury.

As a result of the decision, the tribunal ordered that the respondent would be liable for compensation related to the cervical spine injury. However, no compensation was awarded for the left shoulder injury. The case was remitted for further assessment of the permanent impairment attributable to the cervical spine injury.

Orders