Akkari v Akkari Group Pty Ltd - [2022] NSWPIC 520

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Akkari v Akkari Group Pty Ltd [2022] NSWPIC 520
APPLICANT:	Maroun Akkari
RESPONDENT:	Akkari Group Pty Limited
Member:	Anthony Scarcella
DATE OF DECISION:	20 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Issues; sections 4(a) and/or 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act) injuries to the left shoulder, lumbar spine and right knee disputed; the value of contemporaneous evidence; the weight to be given to expert evidence; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Hancock v East Coast Timbers Products Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, South Western Sydney Area Health Service v Edmonds, Onassis and Calogeropoulos v Vergottis, Watson v Foxman considered and applied; Held – the applicant suffered injuries to the right shoulder and the cervical spine arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the applicant did not suffer injuries to the left shoulder, lumbar spine and right knee arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of sections 4(a) and 9A and/or section 4(b)(ii) of the 1987 Act; the matter is remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment in respect of the right upper extremity (right shoulder) and cervical spine under the Workplace Injury Management and Workers Compensation Act 1998.
determinations made:	1. The applicant suffered injuries to the right shoulder and the cervical spine arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the Workers Compensation Act 1987. 2. The applicant did not suffer injuries to the left shoulder, lumbar spine and right knee arising out of or in the course of his employment with the respondent on 14 June 2018 within the meaning of ss 4(a) and 9A and/or s 4(b)(ii) of the Workers Compensation Act 1987.
orders made:	3. The applicant is granted leave to amend the Application to Resolve a Dispute to plead injury as follows: (a) frank injury to the right shoulder, being a rotator cuff tear; (b) frank injury to the left shoulder causing aggravation, acceleration, exacerbation and deterioration of a pre-existing disease process; (c) a soft tissue aggravation of underlying degenerative changes in the cervical spine and the lumbar spine due to the frank injury resulting in an aggravation, acceleration, exacerbation and deterioration of the pre-existing disease process; (d) a soft tissue injury to the right knee, and (e) to the extent that the applicant’s right knee injury was aggravated by the subsequent fall in 2019, that fall and any resulting injury is consequential to the injury on 14 June 2018, in that, the fall was as a result of…

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

Case: [2022] NSWPIC 520
Decision Date: 20 September 2022

CaseChat Overview and Summary

The applicant, Mr Akkari, contested the respondent, Akkari Group Pty Ltd, over the validity of certain workers' compensation claims following an incident on 14 June 2018. The crux of the dispute was whether the injuries sustained by Mr Akkari to his left shoulder, lumbar spine, and right knee arose out of or in the course of his employment, as defined by sections 4(a) and 4(b)(ii) of the Workers Compensation Act 1987. The matter was heard and determined in the Workers Compensation Magistrates Court of New South Wales.

The primary legal issues the court needed to address were the interpretation and application of the statutory provisions regarding injuries arising out of or in the course of employment, the weight to be given to contemporaneous evidence, and the relevance and application of expert evidence. The court considered several precedents including Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Hancock v East Coast Timbers Products Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, South Western Sydney Area Health Service v Edmonds, Onassis and Calogeropoulos v Vergottis, and Watson v Foxman to determine the appropriate standard of proof and the significance of expert medical opinions.

In its judgment, the court meticulously evaluated the evidence presented, including contemporaneous records and expert medical opinions. The court found that Mr Akkari did indeed suffer injuries to his right shoulder and cervical spine on 14 June 2018 that arose out of or in the course of his employment, satisfying the statutory requirements. However, the court concluded that there was insufficient evidence to support a finding that the injuries to the left shoulder, lumbar spine, and right knee arose out of or in the course of employment. Consequently, the court remitted the matter to the President for referral to a Medical Assessor to evaluate the whole person impairment for the injuries to the right upper extremity (right shoulder) and cervical spine under the Workplace Injury Management and Workers Compensation Act 1998.

In summary, the court upheld the claim for compensation for injuries to the right shoulder and cervical spine but dismissed the claims for the left shoulder, lumbar spine, and right knee injuries. The matter was remitted for further assessment of the compensable injuries.

Orders