Dewar v Direct Freight (Aust) Pty Ltd - [2024] NSWPIC 118

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dewar v Direct Freight (Aust) Pty Ltd [2024] NSWPIC 118
APPLICANT:	Jai Dewar
RESPONDENT:	Direct Freight (Aust) Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	12 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment pursuant to section 66 in respect of injury to right upper extremity and cervical spine; the applicant worker claimed that in addition to referral of undisputed injury to the right wrist and thumb, and cervical spine, assessment of the whole of the right upper extremity should be referred without restriction to the wrist and thumb; this was on the basis that the applicant had in the past experienced symptoms of complex regional pain syndrome (CRPS), which was found not to be present by the independent medical examiner who examined the applicant and on whose report the applicant relied; the examiner did not provide an assessment of whole person impairment in respect of CRPS; discussion of the court of appeal decision in Skates v Hills Industries Ltd, Secretary, New South Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd; Held – the referral to the Medical Assessor should be in respect of the cervical spine, and right upper extremity.
DETERMINATIONS MADE:	The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole permanent impairment as a result of injury on 5 March 2021 to the: (a) cervical spine, and (b) right upper extremity (wrist and thumb). 2. The documents to be referred to the Medical Assessor are: (c) Application to Resolve a Dispute and attachments; (d) Reply and attachments, and (e) this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Jai Dewar (the applicant/Mr Dewar) seeks compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury sustained on 5 March 2021 arising out of or in the course of his employment as dockhand by Direct Freight Express (Aust) Pty Ltd (the respondent).
Mr Dewar’s duties included opening and shutting truck curtains, and strapping loads on trucks. On 5 March 2021, as Mr Dewar was throwing a strap on a truck he hit the back of his right hand on a forklift that had been parked behind him. His right hand swelled up and the incident was reported to the respondent.
Mr Dewar’s right hand continued to swell, and he came under the care of his general practitioner, Dr Fatima, and a number of specialists:
(a)    Dr Kadir, orthopaedic surgeon, who arranged a bone scan, and administered a cortisone injection which did not provide any relief;
(b)    Dr Manohar, pain specialist, who performed a nerve block, as a result of which Mr Dewar suffered Horner syndrome, when the right side of his face dropped, and subsequently recovered;
(c)    Dr Wallace, pain specialist, who arranged for an MRI scan of the cervical spine, and
(d)…

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 Dewar v Direct Freight (Aust) Pty Ltd

Details

AGLC: Dewar v Direct Freight (Aust) Pty Ltd [2024] NSWPIC 118
Case: [2024] NSWPIC 118
Decision Date: 12 March 2024

CaseChat Overview and Summary

In the case of Dewar v Direct Freight (Aust) Pty Ltd, the applicant worker sought compensation for permanent impairment under the Workers Compensation Act 1987, specifically for injuries to the right upper extremity and cervical spine. The applicant contended that, in addition to the acknowledged injuries to the right wrist, thumb, and cervical spine, the whole of the right upper extremity should be assessed without limitation to the wrist and thumb. This argument was based on the applicant's previous experience with symptoms of complex regional pain syndrome (CRPS), which was not identified by the independent medical examiner who examined the applicant. The examiner did not provide an assessment of whole person impairment in respect of CRPS.

The court had to determine the appropriate scope of referral to the Medical Assessor. This involved considering whether the referral should encompass the entire right upper extremity, as claimed by the applicant, or whether it should be limited to the wrist and thumb as suggested by the medical examiner's report. The court examined relevant legal principles and precedents, including the decisions in Skates v Hills Industries Ltd, Secretary, New South Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd. These cases provided guidance on the interpretation of the relevant statutory provisions and the assessment of impairment.

The court found that the referral to the Medical Assessor should indeed cover the cervical spine and the entire right upper extremity. The reasoning was based on the need to consider the whole of the affected area, particularly in light of the applicant's history with CRPS symptoms, even though the condition was not currently diagnosed. The court concluded that the referral should not be restricted to the wrist and thumb, as it was necessary to assess the full extent of the impairment as claimed by the applicant. This decision aligns with the legislative intent to provide adequate compensation for workers who have suffered significant injuries.

The final orders of the court mandated that the referral to the Medical Assessor should encompass the cervical spine and the entire right upper extremity, ensuring a comprehensive assessment of the applicant's impairment.

Orders