Car v Vanguarde Pty Ltd - [2024] NSWPIC 214

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CAR v Vanguarde Pty Ltd & Ors [2024] NSWPIC 214
APPLICANT:	CAR
FIRST RESPONDENT:	Vanguarde Pty Ltd
SECOND RESPONDENT:	BME Group Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	29 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses following alleged injury to the cervical spine arising out of or in the course of his employment with the respondents; the injury with the first respondent was deemed to have occurred on 1 December 2017 and the injury with the second respondent was deemed to have occurred on 20 November 2018; respondents disputed injury; applicant alleged pain and stiffness in the neck because of his work conditions but there was no records of any report or complaint to treating doctors until February 2021; Held – applicant failed to discharge the onus of proof; award in favour of the respondents.
DETERMINATIONS MADE:	1. Award in favour of the first and second respondents.

STATEMENT OF REASONS

BACKGROUND

CAR (the applicant) was employed by Vanguarde Pty Ltd (the first respondent) as a senior property manager from about 17 June 2017 to 1 December 2017.
The applicant alleges that in the course of his employment with the first respondent, he sustained an injury to his cervical spine, with symptoms radiating into his upper extremities, such injury being an aggravation, acceleration, exacerbation and deterioration of a pre-existing degenerative disease in the cervical spine as a result of having to work prolonged hours sitting at a desk using a mouse and keyboard with ergonomically poor work stations. The claimed deemed date of this injury was 1 December 2017.
In March 2018 the applicant commenced employment with BME Group Pty Ltd (the second respondent). The applicant alleged that he sustained an injury to his cervical spine with symptoms radiating to his upper extremities, such injury being an aggravation, acceleration, exacerbation and deterioration of a pre-existing degenerative disc disease as a result performing similar duties to those performed in his employment with the first respondent, such duties requiring excessive use of a keyboard, mouse and telephone. The claimed deemed date of this injury was 20 November 2018.
The applicant made a claim against the first respondent on 4 March 2020 in respect of an unspecified injury of the left wrist, hand and fingers, and unspecified injury of the right wrist, hand and fingers. In the claim form dated 10 March 2020 the applicant appeared to identify the injury as fibromyalgia and rheumatism. On 24 May 2021 the applicant sought a review of the insurer’s position on liability, relying on the report of Dr New dated 14 May 2021 in which Dr New made a diagnosis of radicular pain bilaterally in the C7 nerve root distribution.
The applicant made a claim against the second respondent on 20 February 2023 in respect of injury of the neck, bilateral shoulders, right elbow, bilateral wrists and low back with bilateral leg pain.
The applicant is claiming for weekly benefits and medical treatment including…

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 Car v Vanguarde Pty Ltd

Details

AGLC: Romeo v Vanguarde Pty Ltd [2024] NSWPIC 214
Case: [2024] NSWPIC 214
Decision Date: 29 April 2024

CaseChat Overview and Summary

In the matter of Car v Vanguarde Pty Ltd, the applicant sought compensation for injuries sustained during his employment with the respondents. The injuries in question were alleged to have occurred on two separate occasions: the first on 1 December 2017 with the first respondent, and the second on 20 November 2018 with the second respondent. The applicants claimed weekly benefits and medical expenses due to an injury to his cervical spine. The respondents, however, disputed the claims, asserting that the injuries did not arise out of or in the course of employment and that the applicant failed to provide timely complaints and reports to his treating doctors.

The court was required to determine whether the applicant had successfully discharged the onus of proving that the injuries were work-related and whether the injury to the cervical spine arose from the employment conditions. The applicant alleged that he experienced pain and stiffness in his neck due to his work conditions, but there were no records of any complaints or reports to the treating doctors until February 2021. The respondents maintained that the applicant did not establish the necessary link between his employment and the alleged injuries.

In reaching its decision, the court considered the evidence presented and the burden of proof on the applicant. The court noted the lack of timely complaints and reports to treating doctors and found that the applicant had not adequately discharged the onus of proof. Consequently, the court held that the applicant had failed to establish that the injuries arose from his employment with the respondents. The award was therefore made in favour of the respondents, dismissing the applicant's claims for weekly benefits and medical expenses.

Orders