Allatt v Programmed Integrated Workforce Limited - [2023] NSWPIC 146

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allatt v Programmed Integrated Workforce Limited [2023] NSWPIC 146
APPLICANT:	Mighalina Allatt
RESPONDENT:	Programmed Integrated Workforce Limited
MEMBER:	John Wynyard
DATE OF DECISION:	6 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Lump sum application regarding a consequential condition to a contralateral wrist; whether deficiencies in statement and medico-legal opinion fatal to the claim; whether clinical notes able to fill evidentiary lacuna; Held – applicant conceded statement and opinion of one expert deficient in explaining when the consequential commenced, or what its cause was; applicant relied on histories taken by various medical and health professionals within the clinical notes; matter remitted for assessment of consequential condition and injury.
DETERMINATIONS MADE:

The Commission finds:

The condition of the applicant’s left wrist is a consequential condition resulting from the injury to the right wrist of 16 July 2018.

The Commission orders:

I remit the matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases:
(a)     Date of injury:                    16 July 2018.
(b)     Matters for assessment:     left upper extremity (wrist and thumb) consequential;
right upper extremity (wrist and thumb), and   TEMSKI/scarring.
(c)Evidence:  Application to Resolve a Dispute and attached documents and Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mighalina Allatt, the applicant, brings a claim for lump sum compensation against Programmed Integrated Workforce Limited, the respondent, in respect of an accepted injury to the right upper extremity and a consequential condition to the left upper extremity, and for impairment caused by scarring under the TEMSKI scale.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant suffer a consequential condition to her left upper extremity?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard by way of video link hearing on 15 February 2023. The applicant was represented by Mr Dewashish Adhikary instructed by Ms Emma Rovey. The respondent was represented by Mr Paul Rickard of counsel instructed by Mr Michael Lee. Ms Renee Swayed appeared for the insurer but was excused when the matter proceeded to arbitration. 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

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made.

FINDINGS AND REASONS

This matter concerns an unusual injury to the right wrist after one day’s work in a…

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 Allatt v Programmed Integrated Workforce Limited

Details

AGLC: Allatt v Programmed Integrated Workforce Limited [2023] NSWPIC 146
Case: [2023] NSWPIC 146
Decision Date: 6 April 2023

CaseChat Overview and Summary

Allatt brought a claim against Programmed Integrated Workforce Limited, seeking a lump sum payment for a consequential condition to her contralateral wrist. The dispute centred on the validity of the evidence provided by the applicant, specifically the statement and medico-legal opinion, and whether these deficiencies could be overcome by the clinical notes. The matter was heard in the relevant tribunal.

The primary legal issues for determination were whether the deficiencies in the statement and medico-legal opinion were fatal to the applicant's claim and, if not, whether the clinical notes could sufficiently fill the evidentiary gaps to permit the assessment of the consequential condition and injury. The tribunal needed to examine the weight and admissibility of the clinical notes as a substitute for the deficient expert evidence.

In addressing the issues, the tribunal noted that the applicant had conceded that the statement and opinion of one of the experts were deficient in several respects, including the failure to explain when the consequential condition commenced or its cause. Despite this concession, the applicant argued that the histories taken by various medical and health professionals within the clinical notes could be relied upon to fill the evidentiary gaps. The tribunal found that the clinical notes, while not a perfect substitute, could provide sufficient information to assess the consequential condition and injury. Consequently, the matter was remitted for reassessment on this basis.

The tribunal did not make any final orders in the determination provided but indicated that the matter would be remitted for reassessment of the consequential condition and injury, taking into account the clinical notes.

Orders