Compagnon v Demo Corp Pty Ltd
[2021] NSWPIC 353
•16 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Compagnon v Demo Corp Pty Ltd [2021] NSWPIC 353 |
| APPLICANT: | Marco Compagnon |
| RESPONDENT: | Demo Corp Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 16 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation, weekly compensation and medical expenses surrounding accepted lumbar spine injury; parties agree permanent impairment compensation to be paid in accordance with Medical Assessment Certificate dated 25 May 2021; weekly payments; parties cannot agree on applicant’s pre-injury earnings despite applicant producing taxation records showing relevant earnings; respondent did not produce any records as to applicant’s wages; preinjury earnings determined in accordance with amount claimed by applicant; capacity also in dispute; Held - applicant totally incapacitated for period claimed, save for a closed period of partial incapacity; respondent ordered to pay applicant weekly benefits and reasonably necessary medical expenses. |
| DETERMINATIONS MADE: | 1. Leave is granted by consent to amend the name of the respondent to Demo Corp Pty Ltd. 2. The respondent is to pay the applicant permanent impairment compensation in respect of a 17% Whole Person Impairment in accordance with the Medical Assessment Certificate of Dr Mastroianni, dated 25 May 2021. 3. Leave is granted to the applicant to amend the claim for weekly benefits to the period of 10 May 2014 to 5 November 2016 inclusive. 4. The applicant suffered an injury to his lumbar spine with associated scarring due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 9 May 2014. 5. At the time of the applicant's injury, his pre-injury average weekly earnings were $1,249.25 per week. 6. The applicant was totally incapacitated for employment as a result of his workplace injury for the following periods: 10 May 2014 to 1 February 2015; and 7. The applicant had partial incapacity for employment for the period 2 February 2015 to 1 June 2015, in that he was fit to work 20 hours per week on selected duties and had capacity in that period to earn $600 per week. 8. The respondent is to pay the applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $1,186.79 per week for the period of 10 May 2014 to 9 August 2014. 9. The respondent is to pay the applicant pursuant to section 37 of the Workers Compensation Act 1987 weekly compensation as follows: (a) at the rate of $999.40 per week for the period of 10 August 2014 to 1 February 2015 and from 3 June 2015 to 5 November 2016; (b) at the rate of $399.40 per week for the period 2 February 2015 to 2 June 2015, and (c) The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
On 24 May 2021, Medical Assessor Dr Mastroianni issued a Medical Assessment Certificate (MAC) with respect to an injury suffered by Marco Compagnon (the applicant) as a result of the nature and conditions of his employment with Demo Corp Pty Ltd (the respondent), with a deemed date of injury of 9 May 2014.
Dr Mastroianni's MAC found the applicant suffered from a 17% Whole Person Impairment as a result of these injuries. There is no issue that the Commission will make an order that the respondent pay the applicant permanent impairment compensation in respect of that finding by the medical assessor.
The applicant also brings a claim for weekly compensation and medical expenses. He originally alleged ongoing total incapacity as a result of his workplace injury, however, at the hearing the claim was amended to the period 10 May 2014 to 5 November 2016.
The respondent disputes the applicant's pre-injury average weekly earnings (PIAWE) and also alleges the applicant had at least partial capacity for at least part of the period claimed.
There is no dispute the applicant is entitled to an award in his favour regarding his claim for reasonably necessary medical expenses.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the applicant's PIAWE, and
(b) the applicant's capacity for employment during the period claimed.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 16 August 2021. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made and 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.
At the hearing, Mr D Adhikary of counsel instructed by Ms Anne Butcher, solicitor, appeared for the applicant Mr D Toohey, instructed by Ms A Davis, solicitor, appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) Applicant's Application to admit Late Documents (AALD), dated 9 August 2021.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The Applicant's pre-injury earnings
The applicant submitted the documents annexed to his AALD confirm his PIAWE, based upon the records of the Australian Taxation Office, were $1,249.25 per week. For its part, the respondent says the latter sum may include some other benefits received by the applicant which do not relate to his employment.
Nevertheless, the respondent has not presented any material to contradict the applicant's claim. Such material would, absent explanation to the contrary, be accessible and available to the respondent.
Whilst there is no doubt, the applicant bears the onus of proving the amount of his pre-injury earnings, in circumstances where the respondent offers no evidence to contradict the applicant's claim, and the applicant has produced relevant material from the Australian Taxation Office, I am comfortably satisfied in the balance of probabilities that the applicant's claim is made out.
On 12 July 2021, solicitors for the applicant served on the respondent a Notice for Production seeking copies of wage records. No wage records were produced. In my view, it ill behoves a party to take issue with the contentions of another in circumstances where the documentation sought from the party goes to a relevant issue in a matter.
In this instance, the respondent offers no explanation for the absence of the wage material, and in circumstances where the applicant has put forward documentation from the ATO as to his income, the best the respondent could do was to simply assert the figures relied on by the applicant may have included other sources of income. There is no evidence to suggest this is the case. Moreover, the respondent issued a Notice for Production on the applicant, which gave rise to the production of the tax records which are now in evidence. Those records have therefore been available to the respondent before the hearing. Nothing has been put forward to contradict them.
Mr Adhikary relied upon the decision of the Court of Appeal in Morvatjou v Moradkhani [2013] NSWCA 157, and in particular, at [55] where the Court stated:
“If a plaintiff does not adduce records or pre-accident earnings, leaving the evidence in a state of uncertainty, it 'does not necessarily follow, as a matter of law or fact, that proof of the plaintiff's claim for lost earning capacity will fail as the evidence may nevertheless establish, on the balance of probabilities, the likelihood of some substantial element of loss, and the Court will take that into account in assessing general damages...however, the assessment is likely to be a modest one having regard to the uncertainties unnecessarily left open by the evidence. The plaintiff will usually not be heard to complain on appeal that the loss may have been greater'. Whilst, because ‘the information concerning the economic loss and documents relevant to it are within the knowledge in possession of the plaintiff...the lack of clarity and such matters is primarily the responsibility of the plaintiff’."
The applicant, of course, has the onus of proof in proving his PIAWE on the balance of probabilities. Absent the wage material sought from the respondent but not produced, in my view he has done the next best thing and relied upon the records of the ATO in proving those earnings. To that extent, the applicant has overcome any suggestion this matter equates with Morvatjou. He has provided the best evidence available to him to support his claim. Indeed, to the extent any criticism is available regarding absence of evidence regarding earnings, that criticism in this instance could, were it necessary, be slated to the respondent absent some explanation for the non-compliance with the Notice for Production.
The Australian Taxation Office payment summary found at [99] of the Application records the applicant receiving payments equivalent to the sum of $1,249.45 gross per week. Moreover, the applicant’s bank statements for the year preceding the deem date of injury account for 32 weeks of net wages paid to the applicant. In my view, that evidence is probably consistent with the applicant's claim that he was paid on average about $1,249.25 gross per week.
Accordingly, I find the applicant's pre-injury average weekly earnings were $1,249.25 per week.
Capacity for employment
The applicant's evidence provided by his treating specialist, Dr Wong, certifies him as having total incapacity for employment from 7 November 2014 to 15 February 2015, then partial fitness for work between 2 February 2015 and 20 April 2015. There is a period where there is a lack of certification from Dr Wong, namely between 21 April 2015 to 2 June 2015, followed by certified total incapacity from 3 June 2015 to the end of the period claimed.
The applicant's uncontested evidence is that he has not worked at all since the date of injury.
The respondent offers very little relevant evidence to counter the applicant's claim for incapacity. Although the applicant’s nominated treating GP Dr Ayesa provided a period of certification of partial fitness for employment in about 2015, I note the Centrelink medical certificates for the same period which are certified by other doctors int eh same practice all state the applicant was totally incapacitated for employment during that time frame. On balance, I am of the view that the preponderance of the medical evidence establishes the applicant was partially incapacitated for the period from 2 February 2015 to 2 June 2015.
Dr Ayesa is the applicant’s nominated treating doctor. It is his opinion he relies on to establish his degree of incapacity during the period claimed. In my view, the applicant cannot have it both ways. He cannot, on the one hand, argue Dr Ayesa as treating doctor provides a sound basis for finding total incapacity, then simply seek to ignore the same doctor’s finding for a period when he certifies only partial incapacity for part of the period claimed.
Doing the best I can for the period of partial incapacity, I note Dr Ayesa certified the applicant as fit for suitable duties for 20 hours per week. Given I have accepted the applicant’s PIAWE based on a full-time work week was as set out above, I assess him as having capacity to earn $600 per week for the period of certified partial incapacity. I reach this conclusion noting Dr Ayesa does not specifically state the limitations which would be placed on the applicant had he worked during this period. In my view, the Centrelink certificates are of little help to the applicant for this period of partial incapacity, as they are completed by doctors other than his treating general practitioner, who had the benefit of treating the applicant over many years and regularly assessing his capacity for employment.
The respondent also took the Commission to a number of medical certificates and reports relating to the applicant's alleged incapacity and submitted they show he was able to carry out work; however, aside from the period from February 2015 to June 2015 referred to above, that evidence concerns a period which postdates that claimed in these proceedings. As Mr Adhikary noted, it is not sufficient to merely contend an injured worker can carry out certain tasks or work for given hours, it is incumbent upon any party to put forward evidence to support their contention.
The respondent in part relied upon the report of Dr van Gelder, treating neurosurgeon, dated 26 November 2019. In that report, Dr van Gelder noted the applicant states that “He is pretty good. He feels taller. He has improved sensation in his left foot. His thigh symptoms are 70% better. Overall, he is a lot better after his operation”.
The difficulty for the respondent, however, is that the operation which so dramatically improved the applicant's condition took place on 3 October 2019, some three years after the last date of claimed incapacity for employment in these proceedings. Essentially, the respondent offers up no evidence to counter the applicant's claim that he was incapacitated for employment for the entirety of the period claimed. There is no vocational assessment provided, and when one examines the lay and medical evidence referable to the period claimed, it overwhelmingly supports a finding the applicant was totally incapacitated for the period claimed save the period of partial incapacity between February and June 2015.
The contemporaneous evidence otherwise supports a finding of total incapacity, and no evidence is put forward by the respondent which effectively counters it. The applicant’s statement evidence is uncontested, there is no question he had a serious lumbar spine injury requiring surgery, and the fact that his condition has improved since that surgery which took place in 2019 is, with respect to the respondent, irrelevant as to whether the applicant suffered incapacity, and to what extent, between 2014 and 2016.
Accordingly, I find the applicant was incapacitated for employment during the period claimed, and the Commission will therefore make the findings and orders as set out on pages one and two of the Certificate of the Determination.
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