Glogoski v Workers Compensation Nominal Insurer - [2019] NSWDC 154

District Court

New South Wales

Medium Neutral Citation: Glogoski v Workers Compensation Nominal Insurer [2019] NSWDC 154
Hearing dates: 18 April 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) Plaintiff’s Summons dismissed
(2) Order the plaintiff to pay the defendant’s costs

Catchwords:
WORKERS COMPENSATION – freight handler suffered injury to lower back at work – worker made election to claim permanent loss compensation – further deterioration occurred
WORKERS COMPENSATION – leave of the court sought to revoke election regarding permanent loss compensation – s 151A(4) Workers Compensation Act 1987 – onus on the applicant to show whether “at the time of the election, there was no reasonable cause to believe that further deterioration would occur” – s 151A(5)(c) Workers Compensation Act 1987 - court must consider the evidence concerning the applicant’s condition at that time and expert opinion as to the medical prognosis for that condition at that time
Legislation Cited: Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Cases Cited: Cipriano v Sew Eurodrive Pty Limited [2016] NSWSC 1630
Corcoran v Tyre Marketers Australia [2001] NSWCA 300
Daniel v Holroyd City Council [2016] NSWDC 239
State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461
Category: Procedural and other rulings
Parties: Ivan John Glogoski (Plaintiff)
The Workers Compensation Nominal Insurer (Defendant)
Representation:
Counsel:
P Mooney SC (Plaintiff)
C J Tanner (Defendant)
Solicitors:
Masselos & Co (Plaintiff)
Bartier Perry (Defendant)

File Number(s): 2019/45579

Judgment

Introduction

The plaintiff commenced working for Ansett Australia in 1997. He was a freight handler. This was hard physical work. On 28 February 2000 the plaintiff suffered a significant lower back injury at work. His condition worsened and eventually he was seen by Dr Loefler, who performed an operation on the lower back on 8 September 2000.
The plaintiff returned to work at Ansett in December 2000. On 21 August 2001 the plaintiff elected to receive lump sum compensation from his employer. That employer is now deregistered, so the plaintiff sues the defendant in its stead.
In October 2001 the plaintiff assisted in lifting a 65kg weight at work. As a result, he developed severe lower back pain. He never returned to work after this event.
By a Summons filed in this court on 8 February 2019 the plaintiff sought leave to revoke the election made on 21 August 2001.

Power to Revoke

At the time the plaintiff elected to receive permanent loss compensation under the Workers Compensation Act 1987 (NSW) (the Act), an election was irrevocable, except that an election to claim permanent loss compensation could be revoked with the leave of the court – s 151A(4) of the Act.
The power of the court to grant leave was contained in s 151A(5) as follows:

“If,
(a) a person elects to claim permanent loss compensation in respect of an injury; and
(b) after the election is made, the injury causes a further material…

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: [2019] NSWDC 154
Decision Date: 03 May 2019

CaseChat Overview and Summary

In the matter of Glogoski v Workers Compensation Nominal Insurer, the plaintiff, a former freight handler, sought to revoke an election made to claim permanent loss compensation following an injury to his lower back at work. The dispute centred on whether the plaintiff was entitled to revoke his election under section 151A(4) of the Workers Compensation Act 1987, and whether there was reasonable cause to believe that further deterioration would occur at the time the election was made. The court had to determine whether the plaintiff could establish the criteria set out in section 151A(5)(c) of the Act, which required consideration of the evidence concerning the applicant’s condition at that time and expert opinion as to the medical prognosis for that condition at that time.

The court examined the evidence provided by the plaintiff and the insurer, focusing on the medical reports and expert opinions presented. It was essential to assess whether there was a reasonable cause to believe that further deterioration would occur at the time of the election. The plaintiff argued that the evidence did not support such a belief, whereas the defendant contended that the plaintiff had sufficient information to reasonably anticipate the worsening of his condition. The court needed to balance the onus on the plaintiff to demonstrate that there was no reasonable cause to believe further deterioration would occur.

In its judgment, the court held that the plaintiff failed to meet the onus of showing that there was no reasonable cause to believe that further deterioration would occur at the time of the election. The evidence, including the medical reports and expert opinions, indicated that there were reasonable grounds to foresee the potential for further deterioration. Consequently, the plaintiff's application to revoke the election was dismissed. The court further ordered that the plaintiff pay the defendant's costs.

Orders

Orders of the court

(1) Plaintiff’s Summons dismissed

(2) Order the plaintiff to pay the defendant’s costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Glogoski v Workers Compensation Nominal Insurer [2019] NSWDC 154
Hearing dates:	18 April 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Plaintiff’s Summons dismissed (2) Order the plaintiff to pay the defendant’s costs
Catchwords:	WORKERS COMPENSATION – freight handler suffered injury to lower back at work – worker made election to claim permanent loss compensation – further deterioration occurred WORKERS COMPENSATION – leave of the court sought to revoke election regarding permanent loss compensation – s 151A(4) Workers Compensation Act 1987 – onus on the applicant to show whether “at the time of the election, there was no reasonable cause to believe that further deterioration would occur” – s 151A(5)(c) Workers Compensation Act 1987 - court must consider the evidence concerning the applicant’s condition at that time and expert opinion as to the medical prognosis for that condition at that time
Legislation Cited:	Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Cases Cited:	Cipriano v Sew Eurodrive Pty Limited [2016] NSWSC 1630 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Daniel v Holroyd City Council [2016] NSWDC 239 State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461
Category:	Procedural and other rulings
Parties:	Ivan John Glogoski (Plaintiff) The Workers Compensation Nominal Insurer (Defendant)
Representation:	Counsel: P Mooney SC (Plaintiff) C J Tanner (Defendant) Solicitors: Masselos & Co (Plaintiff) Bartier Perry (Defendant)
File Number(s):	2019/45579