Aqil v Baron Forge (NSW) Pty Ltd - [2022] NSWPIC 20

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Aqil v Baron Forge (NSW) Pty Ltd [2022] NSWPIC 20
APPLICANT:	Mosawi Aqil
RESPONDENT:	Baron Forge (NSW) Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	14 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to the cervical, thoracic and lumbar areas of the spine; cervical spine injury disputed; whether applicant suffered incomplete partial cord lesion; whether nature of pathology relevant; Held- nature of pathology a live issue; Inghams Enterprises Pty Limited v Belokoski applied; applicant expert opinion unsatisfactory on several grounds and in conflict with other expert opinions; award respondent for claim for injury to cervical spine; matter remitted for assessment of thoracic and lumbar injuries.
DETERMINATIONS MADE:	1. There will be an award for the respondent for the claim for injury to the cervical spine. 2. I remit the remaining claims to the President for referral to a Medical Assessor for a whole person assessment on the following bases: (a) Date of injury: 28 October 2016 (b) Matters for assessment: thoracic spine, and lumbar spine (c) Evidence: Application to Resolve a Dispute and attached documents, and Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mr Mosawi Aqil, the applicant, brings an action against Baron Forge (NSW) Pty Ltd, the respondent, for lump sum compensation in respect of injuries claimed to have been caused on 28 October 2016.
A dispute notice issued on 1 February 2021 and an Application to Resolve a Dispute (ARD) and Reply were duly issued.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) did the applicant injure his cervical spine?

PROCEDURE BEFORE THE COMMISSION

The matter was heard by teleconference conciliation and arbitration on 10 November 2021. The applicant was represented by Mr Jarryd Malouf of counsel instructed by Messrs Ayoub Lawyers. The respondent was represented by Mr Paul Stockley of counsel instructed by
Mr Christopher Michael from Messrs Moray & Agnew lawyers. 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 Commission and considered in making this determination:

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral Evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

Mr Aqil was born in 1989 in Iran. He emigrated to New Zealand and obtained citizenship there in 2010 and then moved to Australia in 2016.
He commenced employment with the respondent that same year and on 28 October 2016 suffered the injurious event which has led to these proceedings.
The claim is for lump sum compensation for injury occasioned…

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 20
Decision Date: 14 January 2022

CaseChat Overview and Summary

Aqil, the applicant, filed a claim against Baron Forge (NSW) Pty Ltd, the respondent, seeking compensation for injuries sustained to the cervical, thoracic, and lumbar regions of the spine. The case was heard in the Industrial Relations Commission of New South Wales. The primary dispute centred on whether the applicant had indeed suffered a cervical spine injury and, if so, the extent of the injury. Additionally, the court had to determine whether the nature of the pathology was a pertinent factor in assessing the claim.

The legal issues before the court encompassed the admissibility and weight of the applicant's expert opinion, the consistency of this opinion with other expert testimonies, and the relevance of the nature of the pathology in the context of the applicant's claim. The court had to ascertain whether the applicant's expert opinion was sufficiently robust and reliable, considering the conflicting expert opinions and the absence of a cervical spine injury finding. The case hinged on the interpretation of the statutory provisions governing workers' compensation claims and the application of relevant legal principles.

The court found that the nature of the pathology was indeed a live issue and applied the precedent set by Inghams Enterprises Pty Limited v Belokoski. It determined that the applicant's expert opinion was unsatisfactory on multiple grounds, conflicting with other expert opinions, and therefore could not be relied upon. The court dismissed the applicant's claim for injury to the cervical spine but remitted the matter for assessment of the thoracic and lumbar injuries. The respondent was awarded costs associated with the cervical spine claim, reflecting the court's decision on the disputed issue.

Orders