Du v Tian Tong Group Pty Ltd - [2023] NSWPIC 19

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Du v Tian Tong Group Pty Ltd [2023] NSWPIC 19
APPLICANT:	Hang Du
RESPONDENT:	Tian Tong Group Pty Ltd
Member:	John Wynyard
DATE OF DECISION:	18 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim for injury to the cervical spine and cervical spinal cord; whether injury to spinal cord occurred; Held – every medical practitioner in the matter, including the respondent’s neurosurgeon, accepted that injury in serious motor vehicle accident involved both the cervical spine, and the cervical spinal cord; the respondent’s neurosurgeon then contradicted his earlier advice and stated that the applicant did not suffer a spinal cord injury, but the respondent’s neurosurgeon applied the wrong criteria to the definition of a spinal cord impairment; matter remitted for whole person impairment assessment for both the cervical spine and the cervical spinal cord.
determinations made:	1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 11 May 2018. (b) Matters for assessment: (i) cervical spine, and (ii) cervical spinal cord. (c) Evidence: (i) Application to Resolve a Dispute and attached documents; (ii) Reply and attached documents, and (iii) Respondent Application to Admit Late Documents dated 25 October 2022.

STATEMENT OF REASONS

BACKGROUND

Hang Du, the applicant, brings an action against Tian Tong Group Pty Ltd, the respondent, for lump sum compensation.
Dispute notices were served, and the Application to Resolve a Dispute (ARD) and Reply were duly issued.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant suffer an injury to his cervical spinal cord.

PROCEDURE BEFORE THE COMMISSION

At the teleconference on 7 October 2022, I issued directions for written submissions. The applicant was represented by Mr Cedric Chen of Stephen Young Lawyers. The respondent was represented by Mr Robert Mitas from Lee Legal Group. Ms Sarah Molle, a Mandarin interpreter, and Ms Lucy Iacono on behalf of the insurer were also in attendance.
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 relevant documentary evidence will be referred to in the reasons below. I have accepted the factual background as it has been set out by both parties, as there is no dispute as to the chronology.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

The issue for determination arises after the respondent objected to the proposed terms of a referral to a medical assessment dated 5 September 2022, which sought a whole person impairment (WPI)…

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: [2023] NSWPIC 19
Decision Date: 18 January 2023

CaseChat Overview and Summary

The parties in this case were Du, the applicant, and Tian Tong Group Pty Ltd, the respondent. Du had brought a claim for a lump sum payment for injuries sustained to his cervical spine and cervical spinal cord following a serious motor vehicle accident. The dispute centred on whether Du had suffered an injury to his cervical spinal cord, which would entitle him to compensation under the workers compensation scheme. The matter was heard in the Federal Circuit Court of Australia.

The legal issues that the court was required to decide included whether Du had indeed suffered an injury to his cervical spinal cord, and if so, what the extent of that injury was. The respondent argued that Du had not suffered an injury to his cervical spinal cord, despite earlier medical evidence to the contrary. The court had to consider the medical evidence presented, and determine whether the respondent’s neurosurgeon had correctly applied the criteria to the definition of a spinal cord impairment.

The court found that every medical practitioner involved in the case, including the respondent’s neurosurgeon, had initially accepted that Du had suffered an injury to both his cervical spine and cervical spinal cord. However, the respondent’s neurosurgeon later contradicted his earlier advice, stating that Du had not suffered a spinal cord injury. The court determined that the respondent’s neurosurgeon had applied the wrong criteria to the definition of a spinal cord impairment, and that this had led to an incorrect conclusion. As a result, the court remitted the matter for a whole person impairment assessment for both the cervical spine and the cervical spinal cord.

The court’s decision was that the matter was to be remitted for a whole person impairment assessment for both the cervical spine and the cervical spinal cord. This would allow for a more accurate determination of the extent of Du’s injuries, and the appropriate level of compensation to be paid. The court found that the respondent’s neurosurgeon had not correctly applied the criteria to the definition of a spinal cord impairment, and that this had led to an incorrect conclusion. The court emphasised the importance of correctly applying the relevant criteria in such cases, and the need for medical practitioners to be thorough and accurate in their assessments.

Orders