Ferro v Mercon Group Pty Ltd - [2022] NSWPIC 165

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ferro v Mercon Group Pty Ltd [2022] NSWPIC 165
APPLICANT:	Joe Ferro
RESPONDENT:	Mercon Group Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	14 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation; injury to left lower extremity accepted; respondent disputes injury to cervical spine, lumbar spine, visual system and psychological injury; applicant’s preinjury earnings agreed; Held- the applicant has not discharged the onus of proof with respect to the alleged injuries to the cervical spine, lumbar spine and the visual system; award for the respondent on the claim for injuries to those body systems; the evidence, including that of the applicant’s general practitioner, discloses the applicant suffered a psychological injury; the lay and medical evidence supports a finding the applicant was totally incapacitated for employment for the relevant 130 week period; the applicant has not discharged the requirements for establishing an entitlement to weekly benefits pursuant to section 38 of the Workers Compensation Act 1987 (1987 Act); respondent to pay the applicant weekly compensation from the date of injury to 2 August 2019 in accordance with sections 36 and 37 of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his left lower extremity (leg and ankle) and a psychological injury in the course of his employment with the respondent on 3 February 2017. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $791.92. 3. Award for the respondent on the claims for injury to the lumbar spine, cervical spine and visual system. 4. As a result of his injury, the applicant was totally incapacitated for employment from 3 February 2017 to 2 August 2019. 5. The respondent is to pay the applicant weekly compensation as follows: (a) pursuant to section 36, at the rate of $752.32 per week from 3 February 2017 to 5 May 2017, and (b) pursuant to section 37, at the rate of $633.53 per week from 6 May 2017 to 2 August 2019. 6. The applicant has not satisfied the requirements for an award for weekly compensation pursuant to section 38. Award for the respondent on the claim for weekly compensation pursuant to section 38 from 3 August 2019 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

On 3 February 2017, Joe Ferro (the applicant) suffered a fall in the workplace from a height of approximately 3 m to a concrete floor below when a slab on which he was standing on a construction site in Balmain gave way beneath him. There is no issue that at the time of the fall, the applicant was employed by Mecon Group Pty Ltd (the respondent).
There is also no issue the applicant suffered a severe injury to his left ankle. In this matter, he seeks the payment of weekly compensation from the date of injury to date and continuing. The applicant's pre-injury average weekly earnings (PIAWE) are agreed between the parties to total $791.92 per week.
The applicant alleges that in addition…

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 Ferro v Mercon Group Pty Ltd

Details

AGLC: Ferro v Mercon Group Pty Ltd [2022] NSWPIC 165
Case: [2022] NSWPIC 165
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the case of Ferro v Mercon Group Pty Ltd, the applicant sought compensation for various injuries sustained during employment. The injuries in question included those to the left lower extremity, the cervical spine, lumbar spine, visual system, and psychological injury. The respondent disputed the injuries to the cervical spine, lumbar spine, visual system, and psychological injury, while conceding the injury to the left lower extremity. The court was tasked with determining whether the applicant had successfully proven the alleged additional injuries and whether the applicant was entitled to weekly compensation for the psychological injury.

The primary legal issues before the court were whether the applicant had discharged the onus of proving the injuries to the cervical spine, lumbar spine, visual system, and psychological injury. The court needed to assess the evidence presented by both parties, including the applicant’s general practitioner, to determine the credibility and sufficiency of the proof regarding these injuries. Additionally, the court had to evaluate whether the applicant met the criteria for total incapacity for employment due to the psychological injury and whether the applicant had fulfilled the requirements for establishing an entitlement to weekly benefits under the Workers Compensation Act 1987.

The court found that the applicant had not discharged the burden of proof for the injuries to the cervical spine, lumbar spine, and visual system. However, the evidence, including the lay and medical testimony, indicated that the applicant had indeed suffered a psychological injury. The court accepted that the applicant was totally incapacitated for employment for the relevant period. Despite the psychological injury, the court concluded that the applicant had not established the necessary criteria for weekly compensation under section 38 of the 1987 Act. Consequently, the court ordered the respondent to pay weekly compensation to the applicant from the date of injury until 2 August 2019, in accordance with sections 36 and 37 of the 1987 Act.

Orders