Coote v Designbuild NSW Pty Ltd - [2024] NSWPIC 235

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Coote v Designbuild NSW Pty Ltd [2024] NSWPIC 235
APPLICANT:	James Coote
RESPONDENT:	Designbuild NSW Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	7 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment pursuant to section 66; accepted injury to right biceps tendon on 19 October 2019 and consequential right wrist condition; disputed injury to right shoulder; Kooragang Cement Pty Ltd v Bates referred to; Held – that the applicant sustained an injury to his right shoulder on 19 October 2019 as alleged.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his right upper extremity (shoulder) on 19 October 2019. The Commission orders: 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of Injury: 19 October 2019 (b) Body parts: right upper extremity (wrist, elbow and shoulder) and scarring (TEMSKI) (c) Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents, and (b) The respondent’s Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

James Coote (the applicant) is a 32-year-old carpenter and sole director of Designbuild NSW Pty Ltd (the respondent) which he set up in 2015 with his father John Coote, a licensed builder.
The applicant alleges that he sustained injuries to his right wrist, elbow and shoulder on 19 October 2019 while loading 20kg bags of cement on to a vehicle with another worker.
The respondent accepted liability for spontaneous rupture of flexor tendon.
On 17 July 2023 the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in which he relied upon impairments assessed by Dr Brian Stephenson to his right upper extremity (wrist, elbow and shoulder).
The respondent issued a notice on 13 October 2023 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 denying liability for lump sum compensation in respect of the applicant’s right shoulder injury or condition.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission), the applicant seeks to have the Commission determine the dispute.
The dispute came before the Commission for a preliminary conference on 3 April 2024 and the respondent confirmed it does not dispute that the applicant sustained injuries to his right elbow and right wrist. The respondent disputes however that the applicant sustained injury to his right shoulder.
The dispute was listed for conciliation/arbitration with liability for the applicant’s right shoulder injury the only issue in dispute.

ISSUE FOR DETERMINATION

The parties agree that the issue that remains in dispute is whether the applicant sustained a right upper extremity (shoulder) injury on 19 October 2019.
The applicant submits that if that issue is determined in his…

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: [2024] NSWPIC 235
Decision Date: 7 May 2024

CaseChat Overview and Summary

The applicant, Mr Coote, lodged a claim for permanent impairment against Designbuild NSW Pty Ltd under the Workers Compensation Act 1987. Mr Coote alleged that he sustained an injury to his right biceps tendon and a consequential right wrist condition on 19 October 2019. However, Designbuild contested the injury to the right shoulder, arguing that the applicant's claim was not supported by the evidence. The case was heard by the Workers Compensation Magistrate, who needed to determine whether the applicant had indeed sustained an injury to his right shoulder on the specified date.

The primary legal issue before the court was whether Mr Coote had sustained an injury to his right shoulder as he claimed. The court had to consider the evidence presented by both parties and assess its credibility. The applicant relied on his own testimony and medical reports, while Designbuild challenged the validity of these claims. The court referenced Kooragang Cement Pty Ltd v Bates to guide its decision-making process.

The court found that Mr Coote's evidence was credible and that he had indeed sustained an injury to his right shoulder on 19 October 2019. The court was satisfied that the applicant's testimony and the medical reports provided sufficient evidence to support his claim. Designbuild's arguments were not persuasive enough to undermine the applicant's case. Consequently, the court ruled in favour of the applicant, accepting that he had sustained the injury as alleged. The court's decision was based on a careful evaluation of the evidence and the principles established in relevant case law.

Orders