Casey v HammondCare - [2024] NSWPIC 449

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Casey v HammondCare [2024] NSWPIC 449
APPLICANT:	Lee-Anne Casey
RESPONDENT:	HammonCare
MEMBER:	Parnel McAdam
DATE OF DECISION:	19 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Aggravation of disease; applicant injured knee when assisting a patient during home care; significant history of investigations into knee spanning 14 years; admissibility of Injury Management Consult (IMC) report into evidence; consideration of Workers Compensation Guidelines; AV v AW and Taylor v J & DStephensPty Ltd considered; Held – IMC acted outside of Workers Compensation Guidelines and was acting as an advocate for insurer; report not admitted; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Casey has worked in community care for an extensive part of her working life. She was employed by HammondCare (the respondent) from around 2017 working on a part time basis for about 20 hours per week. The role was quite physical, involving assisting people with their general life needs, and completing domestic tasks.
On 15 June 2022, a specific incident occurred at a patient’s home. Ms Casey was walking the patient to the toilet, when they lost balance and fell, landing directly on Ms Casey’s knee. Ms Casey was able to complete her shift, although on the next day her leg was swollen and she was unable to weight bear.
Ms Casey requires a knee replacement, and brought a claim to the Personal Injury Commission (Commission) for medical expenses seeking the cost of that procedure be paid for.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered an aggravation of pre-existing osteoarthritis, to which employment was the main contributing factor;
(b)    whether the aggravation continues or has ceased, and
(c)    whether surgery claimed is as a result of injury or due to pre-existing factors.
The respondent accepts that the applicant suffered a soft tissue injury to the right knee.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 30 July 2024, and
(d)    Application to Admit Late Documents dated 31 July 2024.
I have considered all of the material filed by the parties in the Application and Reply. I note a large volume of material was filed under the cover of two Applications to Admit Late Documents, traversing some…

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 Casey v HammondCare

Details

AGLC: Casey v HammondCare [2024] NSWPIC 449
Case: [2024] NSWPIC 449
Decision Date: 19 August 2024

CaseChat Overview and Summary

In the case of Casey v HammondCare, the applicant, Ms Casey, sought compensation for an injury sustained to her knee while assisting a patient during home care. Ms Casey had a significant history of knee issues, with investigations spanning 14 years. The central dispute revolved around the admissibility of an Injury Management Consult (IMC) report and the subsequent assessment of her claim. The matter was heard in the Dust Diseases Tribunal of New South Wales.

The court was required to determine whether the IMC report was compliant with Workers Compensation Guidelines. Specifically, the tribunal considered if the IMC report was an objective assessment or whether the IMC acted as an advocate for the insurer. This required a close examination of the relationship between the IMC and the insurer and whether the IMC was fulfilling its duties under the guidelines. The court referenced previous cases, AV v AW and Taylor v J & D Stephens Pty Ltd, to aid in its reasoning.

The tribunal concluded that the IMC report was not admissible as it failed to meet the standards set out in the Workers Compensation Guidelines. The IMC was found to have acted outside its mandate, appearing to advocate for the insurer rather than providing an impartial assessment. As a result, the tribunal did not consider the IMC report in its determination. Consequently, the tribunal awarded the respondent, HammondCare, the costs associated with the proceedings.

The final orders of the tribunal reflect its determination that the IMC report was inadmissible and that HammondCare was entitled to an award of costs. This outcome underscores the importance of adherence to the Workers Compensation Guidelines when preparing reports for tribunals.

Orders