Henderson v Reece Australia Pty Limited - [2022] NSWPIC 174

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Henderson v Reece Australia Pty Limited [2022] NSWPIC 174
APPLICANT:	Garth Henderson
RESPONDENT:	Reece Australia Pty Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	21 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Issues; claim for permanent impairment compensation for accepted injury to the right wrist on 7 November 2018; prior injury to the right wrist in 2009 requiring surgical procedures; applicant’s forensic medical specialist the only evidence assessing whole person impairment as a result of injury; respondent disputed the forensic medical specialist’s zero deductible proportion under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); failure to expose reasoning behind the assessment of zero deductible proportion; whether it was an appropriate case for the Member to determine the section 323 of the 1998 Act issue or whether the matter should be remitted to the President for referral to a Medical Assessor; Shankar v Ceva Logistics (Australia) Pty Limited considered but not followed; Etherton v ISS Properties Services Pty Ltd; Vitaz v Westform (NSW) Pty Ltd; Vannini v Worldwide Demolitions Pty Ltd; Asbestos Remover & Demolition Contractors Pty Ltd v Kruse; Hancock v East Coast Timbers Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd; and NSW Police Force v Hahn considered and applied; Held- it was an appropriate case for the Member to determine the permanent impairment claim; applying a common sense approach to causation, the 2009 right wrist injury was a contributing factor causing permanent impairment and that a deduction is required under section 323 of the 1998 Act; a one-tenth deduction under section 323 of the 1998 Act was not at odds with the available evidence; an assessment was difficult to determine in the absence of medical evidence properly addressing the requirements of section 323 of the 1998 Act; accordingly, the statutory deduction under section 323(2) of the 1998 Act of one-tenth was applied.
DETERMINATIONS MADE:	1. The applicant has 11% whole person impairment attributable to the accepted injury on 7 November 2018.
ORDERS MADE:	2. The applicant’s claim for weekly benefits is discontinued. 3. The respondent pay to the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $23,790 in respect of 11% permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of 7 November 2018.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Garth Henderson, is a 60-year-old man who was employed by the respondent, Reece Australia Pty Limited (Reece) as a full-time driver.
On or about 7 November 2018, Mr Henderson alleges that, whilst strapping pipes into bundles with metal banding, he sustained an injury to his right wrist.
Mr Henderson lodged a claim for weekly benefits and medical expenses under the Workers Compensation Act 1987 (the 1987 Act) with the insurer of Reece, icare Workers Insurance (icare) and was paid until 9 October 2020.
On 12 June 2020, icare issued a dispute notice under section 78 of the Workplace Injury Management and Workers Compensation…

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: [2022] NSWPIC 174
Decision Date: 21 April 2022

CaseChat Overview and Summary

Henderson brought a claim against Reece Australia Pty Limited for permanent impairment compensation relating to an injury to his right wrist sustained on 7 November 2018. Henderson had previously injured his right wrist in 2009, which required surgical procedures. The matter was heard in the Workers Compensation Magistrate’s Court of New South Wales. The primary dispute was whether the respondent should be required to pay a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for the injury to Henderson’s right wrist sustained in 2009. The respondent contested the zero deductible proportion assessed by Henderson’s forensic medical specialist, arguing that the specialist had failed to properly address the requirements of section 323 of the 1998 Act. The court needed to decide whether it was appropriate for the Member to determine the section 323 issue or whether the matter should be remitted to the President for referral to a Medical Assessor.

The court considered relevant case law, including Shankar v Ceva Logistics (Australia) Pty Limited, which was not followed, and Etherton v ISS Properties Services Pty Ltd; Vitaz v Westform (NSW) Pty Ltd; Vannini v Worldwide Demolitions Pty Ltd; Asbestos Remover & Demolition Contractors Pty Ltd v Kruse; Hancock v East Coast Timbers Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd; and NSW Police Force v Hahn, which were applied. The court concluded that it was appropriate for the Member to determine the permanent impairment claim. The court applied a common sense approach to causation and found that the 2009 right wrist injury was a contributing factor causing permanent impairment, and thus, a deduction was required under section 323 of the 1998 Act. The court further found that a one-tenth deduction under section 323 of the 1998 Act was not inconsistent with the available evidence and was therefore appropriate. The statutory deduction under section 323(2) of the 1998 Act of one-tenth was applied.

The court found in favour of Henderson, ordering that a deduction of one-tenth be applied under section 323 of the 1998 Act for the prior injury to Henderson’s right wrist in 2009. The court did not remit the matter to the President for referral to a Medical Assessor, as it was deemed appropriate for the Member to determine the permanent impairment claim. The final orders were that the respondent was to pay the compensation claim to Henderson, subject to the one-tenth deduction for the prior injury.

Orders