Caruso v Transport for NSW - [2021] NSWPIC 500

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Caruso v Transport for NSW [2021] NSWPIC 500
APPLICANT:	Carlie Jane Caruso
RESPONDENT:	Transport for NSW
MEMBER:	John Isaksen
DATE OF DECISION:	3 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation for partial incapacity for injury to the neck and left upper limb for a five-month period in 2019 and the payment of medical expenses; determination of suitable employment and relevant rates of pay for that employment; reference to Wollongong Nursing Home v Dewar; Held – order for weekly payments of compensation for partial incapacity for that five-month period and payment of reasonably necessary medical expenses.
DETERMINATIONS MADE:	1. The applicant’s pre-injury average weekly earnings (PIAWE) are $826.25. 2. The indexed PIAWE for the period of weekly compensation claimed by the applicant, as provided for by section 82A of the Workers Compensation Act 1987 (the 1987 Act), is: (a) $870.78 per week from 29 July 2019 to 30 September 2019, and (b) $876.09 per week from 1 October 2019 to 30 December 2019. 3. The applicant was able to earn $461.80 per week in suitable employment in the period from 29 July 2019 to 30 December 2019.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation pursuant to section 37 (3) of the 1987 Act as follows: (a) $234.82 per week from 29 July 2019 to 30 September 2019, and (b) $239.07 per week from 1 October 2019 to 30 December 2019. 2. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment for injury to her cervical spine and left upper limb.

STATEMENT OF REASONS

BACKGROUND

Carlie Jane Caruso, the applicant in these proceedings, sustained an injury to her neck and left shoulder on 1 December 2016 while employed as an administrative assistant with the respondent, Transport for NSW.
Ms Caruso claims that she collided heavily with a man as she was leaving a toilet when at work on 1 December 2016 and felt immediate pain in her neck and left shoulder. The respondent accepted liability for this injury.
Ms Caruso claims that she has had ongoing pain in her neck, left shoulder and into her left hand, as well as recurring migraine headaches.
Ms Caruso continued to work for the respondent, but with restrictions on her work capacity, until she decided to resign her employment in May 2018.
Ms Caruso received weekly payments of compensation at varying rates from the time of the injury until 28 July 2019.
The insurer for the respondent, QBE, issued a dispute notice dated 17 June 2019 stating that weekly payments of compensation would be terminated because Ms Caruso no longer had any total or partial incapacity for work. The notice also stated that Ms Caruso was no longer entitled to payment for medical treatment because treatment was no longer reasonably necessary as a result of her injury.
Ms Caruso has been able to undertake intermittent part time work since 28 July…

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 500
Decision Date: 3 December 2021

CaseChat Overview and Summary

The case of Caruso v Transport for NSW involved a claim by Mr. Caruso for weekly payments of compensation for partial incapacity due to an injury to his neck and left upper limb sustained in 2019, as well as for the payment of associated medical expenses. The matter was heard and determined by the relevant authority, focusing on the parameters of workers' compensation law in Australia. The crux of the dispute was whether Mr. Caruso was entitled to compensation for the specified period of partial incapacity and if the medical expenses incurred were reasonably necessary.

The court was tasked with resolving several legal issues, including the proper interpretation and application of the workers' compensation statutes concerning partial incapacity and the definition of reasonably necessary medical expenses. It also needed to determine the appropriate rates of pay for suitable employment, considering the precedent set by Wollongong Nursing Home v Dewar. The court had to weigh the evidence provided regarding Mr. Caruso's medical condition, his capacity to work, and the expenses incurred as a result of his injuries.

In its decision, the court meticulously reviewed the evidence and applicable legal principles. It found that Mr. Caruso was indeed partially incapacitated for the five-month period in question and that the medical expenses claimed were reasonably necessary. The court also determined the rates of pay for suitable employment based on the established guidelines, ensuring that the compensation provided was commensurate with the degree of incapacity and the nature of the injury. Consequently, the court ordered weekly payments of compensation for the period of partial incapacity and the payment of the reasonably necessary medical expenses. This decision upheld Mr. Caruso's rights under the workers' compensation legislation, providing him with the financial support required to recover from his work-related injuries.

Orders