Cameron v Toll Transport Pty Ltd - [2021] NSWPIC 9

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cameron v Toll Transport Pty Ltd [2021] NSWPIC 9
APPLICANT:	Dale Raymond Cameron
RESPONDENT:	Toll Transport Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	5 March 2021
CATCHWORDS:	WORKERS COMPENSATION- application for incurred section 60 expenses and lump sum compensation pursuant to section 66 of the 1987 Act; accepted left hip injury; whether consequential right hip condition; applicant’s medicolegal expert initially recorded a history of “injury” to right hip; whether medicolegal experts asked correct question; whether applicant has exhausted his one claim pursuant to section 66(1A); legal professional privilege claimed over documents produced to Commission; Held – the applicant sustained a consequential condition at right hip as a result of left hip injury; original claim never resolved or determined; subsequent claim form constituted an amendment to the original claim; matter remitted to Medical Assessor to assess degree of permanent impairment.
DETERMINATIONS MADE:	1. The applicant sustained a consequential condition at his right hip as a result of the injury to his left hip on 16 January 2013.
ORDERS MADE:	1. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 16 January 2013 Body parts: Left lower extremity (hip) Right lower extremity (hip) Skin (scarring) Method: Whole Person Impairment 2. The materials to be referred to the Medical Assessor are to include the documents admitted in the proceedings together with this Certificate of Determination and accompanying statement of reasons. 3. The respondent to pay the applicant’s reasonably necessary expenses pursuant to s 60 of the Workers Compensation Act 1987, subject to s 59A of the Workers Compensation Act 1987, in respect of the left hip injury and consequential right hip condition, upon production of accounts, receipts and /or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Dale Raymond Cameron (the applicant) was employed by Toll Transport Pty Ltd (the respondent) as a driver dockhand. On 16 January 2013, the applicant sustained an injury to his left hip when he slipped as he was climbing onto a truck and fell.
In June 2014, the applicant underwent bilateral total hip replacement surgeries performed by Dr Jorgen Hellman.
On 9 April 2015 the applicant made a claim alleging injury to the left and right hips on 16 January 2013. Liability for the injury was provisionally accepted on 16 April 2015.
On 29 May 2015, the respondent’s insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the right hip injury and asserting that the left hip injury had resolved.
On 27 October 2015, a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made for 24% whole person impairment (WPI) of the left and right lower extremities (hips) and skin (scarring) based on an assessment by
Dr Youssef Ghabrial on 9 September 2015. A further notice pursuant to s…

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: [2021] NSWPIC 9
Decision Date: 5 March 2021

CaseChat Overview and Summary

The case of Cameron v Toll Transport Pty Ltd involved a claim for compensation under the Workers Compensation Act 1987. The applicant, Cameron, alleged a left hip injury sustained during employment and sought incurred expenses and lump sum compensation. The dispute centred on whether the applicant's right hip condition was a consequential injury of the left hip injury and whether the original claim had been exhausted. Cameron's medicolegal expert had initially recorded a history of injury to the right hip, raising questions about the scope of the inquiry and the admissibility of documents subject to legal professional privilege.

The court was required to determine if the applicant's right hip condition was a consequential injury of the left hip injury, whether the medicolegal experts were asked the correct question regarding the right hip condition, and if the applicant had exhausted his one claim under section 66(1A) of the 1987 Act. Furthermore, the court had to consider the validity of the claim of legal professional privilege over documents produced to the Commission.

The court held that Cameron sustained a consequential condition at the right hip as a result of the left hip injury, and that the original claim had never been resolved or determined. The subsequent claim form was considered an amendment to the original claim. The matter was remitted to the Medical Assessor to assess the degree of permanent impairment. The court's decision underscored the importance of correctly framing the scope of medical inquiries and the need for a clear understanding of the legal framework governing claims under the Workers Compensation Act 1987.

Orders