Hoang v Cochlear Limited - [2022] NSWPIC 668

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hoang v Cochlear Limited [2022] NSWPIC 668
APPLICANT:	Thi Thanh Hoang
RESPONDENT:	Cochlear Limited
Member:	Rachel Homan
DATE OF DECISION:	5 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted lumbar injury and consequential right shoulder condition; whether consequential left shoulder condition; whether applicant’s explanation plausible applying a common-sense test; lack of radiological investigation; whether medicolegal opinions ought to be accepted; Held – symptoms of pain and restriction at left shoulder resulted from the lumbar injury; matter remitted to President of the Personal Injury Commission for referral to a Medical Assessor.
determinations made:	1. The applicant sustained a consequential condition at her left shoulder as a result of the injury to her lumbar spine on 31 October 2017 (deemed). 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 31 October 2017 (deemed) Body parts: lumbar spine right shoulder (consequential) left shoulder (consequential) Method: whole person impairment 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ms Thi Thanh Hoang (the applicant) was employed by Cochlear Limited (the respondent) between 2005 and 2018 as a hearing implant moulder.
The applicant sustained a work injury to her lumbar spine, liability for which has been accepted by the respondent’s insurer. It is also not in dispute that the applicant sustained a consequential condition at her right shoulder as a result of her lumbar spine injury. The applicant claims that she has also sustained a consequential condition at the left shoulder.
The applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on 18 February 2021, in reliance upon an assessment by orthopaedic surgeon, Dr James Bodel, of 14% whole person impairment (WPI) of the lumbar spine and right shoulder. That claim was amended on 2 June 2022 to seek compensation for 16% WPI based on an assessment by Dr Bodel that included the left shoulder.
A dispute notice was issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 by the respondent’s insurer on 5 August 2022, in which liability to pay lump sum compensation was disputed.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 21 September 2022. The applicant sought lump sum compensation in accordance with Dr Bodel’s most recent assessment as well as compensation for incurred medical and related treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 29 November 2022. The hearing was conducted in person. The applicant was represented by Mr Luke Morgan of counsel, instructed by Ms Marina Azer. The applicant was assisted by an interpreter in the Vietnamese and English languages. The respondent…

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 Hoang v Cochlear Limited

Details

AGLC: Hoang v Cochlear Limited [2022] NSWPIC 668
Case: [2022] NSWPIC 668
Decision Date: 5 December 2022

CaseChat Overview and Summary

The applicant, Hoang, brought a claim against Cochlear Limited for lump sum compensation following an accepted lumbar injury and the consequential condition of the right shoulder. The dispute also involved a left shoulder condition, which Cochlear Limited contested. The case was heard in the New South Wales Civil and Administrative Tribunal.

The primary legal issue before the Tribunal was whether the left shoulder condition was a consequence of the lumbar injury and thus compensable. The Tribunal had to consider the credibility of the applicant’s explanation for the left shoulder condition and assess whether it was plausible based on common sense. Additionally, the Tribunal examined whether the absence of radiological investigation should affect the acceptance of the applicant’s condition. It also considered the weight to be given to medicolegal opinions in light of the evidence presented.

In its reasoning, the Tribunal found that the symptoms of pain and restriction at the left shoulder were indeed a result of the lumbar injury. The Tribunal noted that while the applicant’s explanation was plausible, the lack of radiological investigation did not necessarily undermine its credibility. The Tribunal held that the matter should be remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to reassess the compensability of the left shoulder condition.

No specific final orders were made in the text, but the decision directed the matter to be remitted for further assessment regarding the compensability of the left shoulder condition.

Orders