Gu v Recruitment and Labour Services - [2024] NSWPIC 213

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gu v Recruitment and Labour Services [2024] NSWPIC 213
APPLICANT:	Jing Gu
RESPONDENT:	Recruitment and Labour Services
MEMBER:	John Wynyard
DATE OF DECISION:	29 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 66 benefits; lumbar spine accepted but right hip denied; whether applicant satisfied onus of proof; whether medico-legal opinion of applicant deficient; Held – issue to be determined by expert evidence; ACW v ACX considered and applied; respondent expert opinion of little weight; applicant expert preferred; Mosawi v Baron Forge Pty Ltd applied regarding nature of injury to be remitted.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant suffered injury to her right hip on 23 June 2022. The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for a whole person impairment assessment on the following grounds: Date of injury: 23 June 2022. Matters for assessment: lumbar spine, and right lower extremity (hip). Evidence: Application to Resolve a Dispute and attached documents; Reply and attached documents; Application to Admit Late Documents from the respondent, and a copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

Jing Gu, the applicant, brings an action against Recruitment and Labour Services, the respondent, for payment of lump sum compensation in relation to injury to the lumbar spine and the right lower extremity (hip).
Dispute notices were issued and the Application to Resolve a Dispute was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has Ms Gu proven that she suffered injury to her right hip?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 20 March 2024. Mr Bill Carney of counsel appeared for the applicant instructed by Mr John Andriano. Mr James McEnaney of counsel appeared for the respondent instructed by Ms Sharon Watts. Mr Paul Leonard appeared for the insurer.
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 following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents from the respondent dated 15 March 2024.

Oral evidence

No application was made in relation to oral evidence.

Preliminary

Mr McEnaney indicated that pursuant to the provisions of Regulation 44 of the Workers Compensation Regulation 2016, he was relying on the forensic medical report of A/Prof Paul Miniter dated 4 October 2023.

FINDINGS AND REASONS

Evidence

The applicant

Ms Gu made…

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: [2024] NSWPIC 213
Decision Date: 29 April 2024

CaseChat Overview and Summary

In the case of Gu v Recruitment and Labour Services, the applicant, Mr Gu, brought a claim against the respondent, Recruitment and Labour Services, seeking section 66 benefits under the Workers Compensation Act 1987. The dispute centred on whether Mr Gu had successfully discharged the burden of proof regarding the compensability of his lumbar spine injury and right hip injury. The case was heard in the District Court of New South Wales.

The primary legal issues addressed by the court involved determining whether Mr Gu had met the required standard of proof for his claims and whether the applicant's medico-legal opinion was sufficiently robust. The court had to assess the weight and reliability of the expert evidence presented by both parties to resolve these issues. It was crucial to establish which expert opinion carried more persuasive value in deciding the merits of the applicant's claims.

The court found that the issue of whether Mr Gu's lumbar spine and right hip injuries were compensable should be determined based on expert evidence. The court referred to the precedent set in ACW v ACX and Mosawi v Baron Forge Pty Ltd to guide its decision-making process. The court considered the respondent's expert opinion to be of little weight, whereas the applicant's expert opinion was preferred. Consequently, the court decided that the nature of the injury concerning Mr Gu's lumbar spine should be remitted for further assessment in accordance with Mosawi v Baron Forge Pty Ltd.

The court ordered that the matter be remitted to the Workers Compensation Commission to reassess the compensability of Mr Gu's lumbar spine injury, while confirming that the right hip injury was not compensable. This decision highlights the importance of robust and credible expert evidence in workers' compensation claims and underscores the court's role in evaluating the weight and reliability of such evidence.

Orders