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Ellis v Dontarna Pty Ltd

Ellis v Dontarna Pty Ltd

Case [2024] NSWPIC 513 17 September 2024

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ellis v Dontarna Pty Ltd [2024] NSWPIC 513
APPLICANT:	Rikki Ellis
RESPONDENT:	Dontarna Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant sustained bilateral shoulder injury and suffered incapacity; a claim for section 66 compensation was made in April 2023; applicant assessed at 23% whole person impairment by Medical Assessor; parties agreed that the injury was deemed pursuant to section 15; whether the date of injury was deemed in October 2019 being the first date of incapacity or the date of claim in April 2023; decision inconsistent with previous decision of SAS Trustee Corporation v O’Keefe; Haddad v The GEO Group Australia Pty Limited applied; Held – applicant’s deemed date of injury was date of first incapacity in October 2019.
DETERMINATIONS MADE:	The Commission determines: Finding 1. The date of injury pursuant to s 15(1)(a)(i) of the Workers Compensation Act 1987 is deemed to be 30 October 2019. Order 2. Order 1 of the Certificate of Determination dated 5 August 2024 is amended by replacing the date “23 September 2019” with the date “30 October 2019”.

STATEMENT OF REASONS

BACKGROUND

Mr Rikki Ellis (the applicant) was employed by Dontarna Pty Ltd (the respondent) and sustained injury to the upper extremities. This dispute relates to the correct deemed date of injury considering the recent Court of Appeal decision of Haddad v The GEO Group Australia Pty Ltd.[1]
[1] [2024] NSWCA 135 (Haddad).
The parties agreed that the first economic incapacity in respect of the injury was on
30 October 2019 when the applicant consulted his general practitioner and payments of weekly compensation commenced.
The applicant brought proceedings seeking lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The matter was referred to a Medical Assessor with a deemed date of injury of
23 September 2019. This was the date pleaded in the Application.
Medical Assessor Crocker issued a Medical Assessment Certificate dated 1 July 2024 in which he assessed 10% whole person impairment of the right upper extremity and 14% whole person impairment of the left upper extremity. This resulted in a combined whole person impairment of 23% (the MAC). The Medical Assessor made no deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 5 August 2024 the Personal Injury Commission (Commission) issued a Certificate of Determination consistent with the terms of the MAC for 23% permanent impairment resulting from injury deemed to have occurred on 23 September 2019 (the COD). The respondent was ordered to pay the applicant the sum of $61,900.

Hearing of Application

The matter was listed for hearing on 12 September 2024. Mr Barter of counsel appeared for the applicant and Mr Flocco, solicitor appeared for the respondent.
The parties agreed that the COD required reconsideration. The applicant asserted that the correct deemed date was 6 April…

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 Ellis v Dontarna Pty Ltd

Details

AGLC: Ellis v Dontarna Pty Ltd [2024] NSWPIC 513
Case: [2024] NSWPIC 513
Decision Date: 17 September 2024

CaseChat Overview and Summary

The applicant, Ellis, has brought a claim against Dontarna Pty Ltd for compensation under the Workers Compensation Act 1987. Ellis sustained a bilateral shoulder injury and experienced incapacity as a result. A claim for section 66 compensation was submitted in April 2023. Ellis was assessed at 23% whole person impairment by a Medical Assessor. Both parties concurred that the injury was deemed pursuant to section 15 of the Act. The central issue before the court was to determine the deemed date of injury: was it the first date of incapacity in October 2019 or the date of the claim in April 2023?

The court addressed this issue by considering previous decisions, including SAS Trustee Corporation v O’Keefe and Haddad v The GEO Group Australia Pty Limited. It was established that the deemed date of injury should correspond with the date of the first incapacity. The court found that the applicant’s deemed date of injury was indeed the date of the first incapacity in October 2019. This decision was consistent with the established legal precedent that the date of incapacity, not the date of the claim, should be used to determine the deemed date of injury.

Consequently, the court ruled in favour of the applicant. The decision underscored the importance of aligning the deemed date of injury with the actual date of incapacity. This ruling ensures that the compensation process reflects the true onset of the injury and the associated incapacity, providing a fair outcome for the injured party. The court’s decision clarified the application of section 15 of the Workers Compensation Act 1987 in this context.

Orders