Ali v Form Group NSW Pty Ltd - [2023] NSWPIC 446

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ali v Form Group NSW Pty Ltd [2023] NSWPIC 446
APPLICANT:	Ali Ali
RESPONDENT:	Form Group NSW Pty Ltd
MEMBER:	Lea Drake
DATE OF DECISION:	4 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for finding of consequential injury in the applicant’s upper and lower intestinal tract; Held – the applicant has sustained a consequential injury to his upper and lower intestinal tracts as a result of the medication he has been prescribed and has ingested for pain arising from the injury he sustained in the employment of the respondent on 21 June 2021.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential injury to his upper and lower intestinal tracts as a result of the medication he has been prescribed and has ingested for pain arising from the injury he sustained in the employ of the respondent on 21 June 2021. The Commission Orders 2. The applicant’s lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) date of injury: 21 June 2017 (b) body system: cervical spine right upper extremity (shoulder); right lower extremity (knee); Scarring, and a consequential injury to the upper and lower gastrointestinal tracts. (c) Method of assessment: whole person impairment (d) Documents to be referred: Application to Resolve a Dispute and attachments, REPLY and attachments.

STATEMENT OF REASONS

BACKGROUND

Ali Ali (the applicant) was injured in the employ of Form Group NSW Pty Ltd (the respondent) on 21 June 2017. His claim for compensation was the subject of a Certificate of Determination[1] which was appealed. The appeal was unsuccessful[2]. The Certificate of Determination was confirmed. Following determination of the issue in this application the parties will seek to have the applicant’s impairments referred to a Medical Assessor for determination of any whole person impairment.
[1] Certificate of Determination – Oral Decision Member Paul Sweeney 29 June 2023 A1- 2074/20 ARD page 637
[2] Appeal decision DP Wood 3 November 2023 [2020] NSWWCCPD 64 ARD page 638

ISSUE FOR DETERMINATION

Does the applicant suffer an intestinal impairment as a consequence of ingesting the medications prescribed for him by his treating medical practitioners for the pain he experiences arising from the injury he suffered in the respondents employ on 21 June 2017.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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 all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and…

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: [2023] NSWPIC 446
Decision Date: 4 September 2023

CaseChat Overview and Summary

In the case of Ali v Form Group NSW Pty Ltd, the applicant, Ali, brought a claim against the respondent, Form Group NSW Pty Ltd, seeking compensation for consequential injuries sustained in his upper and lower intestinal tracts. The injuries were alleged to be a result of the medication prescribed and ingested for pain arising from an injury sustained in the course of employment with the respondent on 21 June 2021. The case was heard in a relevant workers compensation tribunal.

The primary legal issue before the court was whether the applicant's intestinal injuries could be considered consequential injuries arising from the original injury sustained in the course of employment, specifically whether the medication prescribed for pain relief was the direct cause of these intestinal injuries. The court had to determine if there was a sufficient causal link between the original injury, the prescribed medication, and the consequential intestinal injuries to warrant compensation under workers compensation legislation.

The court found that the applicant had indeed sustained consequential injuries to his upper and lower intestinal tracts as a direct result of the medication he had been prescribed and ingested for pain management. The court relied on medical evidence presented, which demonstrated that the medications prescribed for pain relief had caused significant side effects, including intestinal damage. The tribunal concluded that the injuries were a foreseeable consequence of the treatment for the original injury and thus constituted a consequential injury under the workers compensation scheme. Consequently, the court held that the applicant was entitled to compensation for these consequential injuries.

The tribunal ordered that the respondent, Form Group NSW Pty Ltd, provide compensation to the applicant for the consequential injuries sustained in his upper and lower intestinal tracts. The specific amount of compensation was not detailed in the provided text but would be determined in subsequent proceedings based on the evidence and arguments presented.

Orders