Carr v CBH Resources Ltd - [2025] NSWPIC 163

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carr v CBH Resources Ltd [2025] NSWPIC 163
APPLICANT:	Simon Carr
RESPONDENT:	CBH Resources Limited
MEMBER:	Adam Halstead
DATE OF DECISION:	22 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim by worker for permanent impairment compensation; workplace left knee injury; consequential peroneal nerve damage following knee surgery; weakness and numbness in left foot from nerve damage with footdrop; how effect of nerve damage on foot to be assessed; independent medical examiner opinions differ on manner of assessment; section 65 of the 1987 Act; determination of degree of permanent impairment; sections 319 and 322 of the 1998 Act; Matar v Zeineddine, and Haroun v Rail Corporation New South Wales considered; Held – issue is a medical dispute and requires resolution by Medical Assessor; claim remitted for medical assessment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his left knee on 31 October 2018 and consequential injury to his left peroneal nerve. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of the left lower extremity (knee and peroneal nerve) and scarring (left knee) arising from injury on 31 October 2018. 3. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) applicant Application to Lodge Additional Documents dated 13 March 2025; (d) respondent Application to Lodge Additional Documents dated 18 March 2025, and (e) this Certificate of Determination with reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Simon Carr, was employed by the respondent, CBH Resources Limited, as a heavy diesel mechanic. While climbing down greasy ladder steps in a drill rig on 31 October 2018, he slipped and “wrenched” his left knee causing tearing and other damage to the joint. Arthroscopic surgery was conducted on the injury and then further surgery followed. The applicant’s left peroneal nerve was damaged either during or because of surgery. Weakness and numbness arose in his left foot from the nerve damage, including “footdrop”.
A claim for lump sum compensation was made by the applicant in relation to the effects of the left knee injury and its consequences. Although the respondent accepts liability for the left knee injury and consequential damage to the peroneal nerve, it disputes the existence of a specific injury to the applicant’s left foot. The applicant seeks to have the effects of the nerve damage to his left foot assessed for the purposes of his claim for permanent impairment. A dispute has arisen between the parties on that issue.
The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 3 December 2024 to initiate these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was before the Commission for arbitration hearing on…

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: [2025] NSWPIC 163
Decision Date: 22 April 2025

CaseChat Overview and Summary

Carr brought a claim against CBH Resources Ltd for compensation under the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), arising from a workplace injury to his left knee. The injury led to peroneal nerve damage following knee surgery, causing weakness and numbness in his left foot, resulting in footdrop. The central dispute was how the effect of the nerve damage on his foot should be assessed for determining the degree of permanent impairment. Two independent medical examiners offered differing opinions on this matter, with one suggesting a combined assessment of the left knee and foot, and the other recommending separate assessments.

The court needed to decide whether the issue of assessing the permanent impairment due to the nerve damage was a medical dispute that should be resolved by a Medical Assessor, or whether it was a legal question to be decided by the Court. The court considered previous cases such as Matar v Zeineddine and Haroun v Rail Corporation New South Wales, which highlighted the importance of deferring to the expertise of medical professionals on matters of medical assessment. Ultimately, the court held that the issue at hand was a medical dispute and thus should be remitted for assessment by a Medical Assessor under sections 65 of the 1987 Act and sections 319 and 322 of the 1998 Act.

The court’s decision was to remit the claim back to a Medical Assessor to determine how the peroneal nerve damage should be assessed in the context of the overall degree of permanent impairment. This approach ensures that the medical expertise is appropriately utilised to resolve the dispute over the assessment methodology. The court did not make a definitive ruling on the assessment method but rather directed that this be determined by the Medical Assessor. This decision underscores the principle that certain complex medical issues are best left to those with the necessary medical expertise.

Orders