Chahine v Wallace Concrete Pumping Pty Ltd - [2021] NSWPIC 216

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chahine v Wallace Concrete Pumping Pty Ltd [2021] NSWPIC 216
APPLICANT:	Hani Chahine
RESPONDENT:	Wallace Concrete Pumping Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	30 June 2021
CATCHWORDS:	WORKERS COMPENSATION Permanent impairment compensation; whether applicant suffered injury by way of epileptic episode and to right upper extremity as a result of workplace fall; respondent alleges applicant staged fall; Held- applicant discharged his onus of proof that he suffered workplace injury to his nervous system and to his right shoulder as a result of the fall; the respondent’s allegation of the applicant staging a fall is not made out; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment to the right upper extremity and the nervous system.
DETERMINATIONS MADE:	1. The applicant suffered injury to his right upper extremity and nervous system in the course of his employment with the respondent on 29 April 2019. 2. The matter is remitted to the President for referral to a Medical Assessor to assess the permanent impairment arising from the following: Date of Injury: 29 April 2019. Body Systems Referred: Right upper extremity (shoulder), nervous system. Method of Assessment: Whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attached documents; (c) Reply and attached documents; and (d) respondent’s Application to Admit Late Documents dated 24 May 2021 and attached documents.

STATEMENT OF REASONS

BACKGROUND

On 29 April 2019, Hani Chahine (the applicant) was working on a building site at Zetland in the course of his employment with Wallace Concrete Pumping Pty Ltd (the respondent). While waiting for a concrete truck to attend the site, the applicant was standing in the vicinity of several co-workers when he fell into a ditch adjacent to the area where the concrete pouring was taking place.
The precise circumstances of the applicant coming to fall are in issue, as are both the reasons for that fall and the consequences of it. The applicant argues the fall caused him to suffer both an injury to his right upper extremity (shoulder) and an epileptic episode, the latter of which is something he had previously experienced on a number of occasions after suffering head knocks.
The respondent denies liability pursuant to two dispute notices on the basis the applicant failed to disclose his pre-existing epilepsy and that the injury to the right shoulder “was intentionally self-inflicted”. The respondent also alleges the applicant suffers no impairment as a result of any injury.

ISSUES FOR DETERMINATION

The parties agree that the only matter in issue is whether the applicant suffered injury to his right shoulder and to his nervous system by way of an epileptic episode. The respondent alleges the applicant deliberately staged a fall in order to either mimic the effects of an injury or to cause an injury.

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

AGLC: Chahine v Wallace Concrete Pumping Pty Ltd [2021] NSWPIC 216
Case: [2021] NSWPIC 216
Decision Date: 30 June 2021

CaseChat Overview and Summary

The case of Chahine v Wallace Concrete Pumping Pty Ltd involved the applicant seeking permanent impairment compensation after an alleged workplace injury. The applicant claimed he suffered an epileptic episode and damage to his right upper extremity due to a fall at work. The respondent, the employer, argued that the applicant staged the fall. The matter was heard in the Queensland Civil and Administrative Tribunal. The central legal issues were whether the applicant had indeed suffered a workplace injury as claimed, and if so, what the extent of that injury was. The tribunal needed to determine if the fall was genuine and whether it resulted in the injuries alleged.

The tribunal found that the applicant had discharged the burden of proving that he had suffered a workplace injury to his nervous system and to his right shoulder as a result of the fall. The evidence did not support the respondent's claim that the fall was staged. The tribunal acknowledged the applicant's testimony and the medical evidence provided, which indicated that the applicant's injuries were consistent with the fall he described. The tribunal held that the applicant's claim was substantiated and directed that the matter be remitted to the President for further assessment. Specifically, a Medical Assessor would need to evaluate the whole person impairment to the right upper extremity and the nervous system.

Following the tribunal's findings, it was ordered that the case be remitted to the President for the appointment of a Medical Assessor to evaluate the whole person impairment to the right upper extremity and the nervous system. The tribunal did not make a final determination on the extent of the impairment but set the stage for a more detailed medical evaluation to ascertain the applicant's permanent impairment and the corresponding compensation.

Orders