Hohepa v Truserv Pty Ltd - [2024] NSWPIC 234

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hohepa v Truserv Pty Ltd [2024] NSWPIC 234
APPLICANT:	Henry Hohepa
RESPONDENT:	Truserv Pty Limited
MEMBER:	Karen Garner
DATE OF DECISION:	7 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 33, 36, 37 and 38, and a general order for medical and related expenses pursuant to section 60; whether applicant sustained injury to his lumbar spine pursuant to sections 4(a), 9A, 4(b)(i), 4(b)(ii); Held – applicant did not sustain an injury to his lumbar spine pursuant to sections 4(a), 9A, 4(b)(i); applicant did sustain an injury to his lumbar spine pursuant to section 4(b)(ii); general order for payment of expenses pursuant to section 60; matter listed for a conference to deal with issue of calculation of weekly compensation pursuant to sections 33, 36, 37 and 38.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant did not sustain an injury to his lumbar spine with a date of injury of 15 November 2019 pursuant to ss 4(a) and 9A Workers Compensation Act 1987 (1987 Act). 2. The applicant did not sustain an injury to his lumbar spine with a deemed date of injury of 29 November 2019 as a result of the nature and conditions of work pursuant to 4(b)(i) 1987 Act, and 3. The applicant did sustain aggravation and exacerbation of a disease in his lumbar spine in the course of employment and his employment was the main contributing factor to the aggravation and exacerbation, with a deemed date of injury of 29 November 2019 pursuant to s 4(b)(ii) 1987 Act. The Commission orders: 4. The respondent to pay the applicant’s expenses in accordance with s 60 1987 Act upon production of accounts, receipts or Medicare Notice of Charge; 5. The matter is to be listed for a conference to deal with the issue of calculation of weekly compensation pursuant to ss 33, 36, 37 and 38 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Henry Hohepa (the applicant) worked for Truserv Pty Limited (the respondent) as a truck driver.
By Workers Injury Claim Form dated 5 March 2020, the applicant made a claim for workers compensation pursuant to the Workers Compensation Act 1987 (1987 Act) in relation to injury to his lower back with a date of injury of 29 November 2019. The form stated that the injury occurred when the applicant was “loading/unloading truck x 4/5 per day” and “got out of truck to unload”.
The respondent’s insurer (the insurer) disputed liability for workers compensation by dispute notice dated 30 June 2020 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
On or about 20 May 2021, the applicant’s solicitors submitted a request for spinal fusion surgery in accordance with quotes submitted by Dr Bisham Singh on 24 February 2021.
The insurer disputed liability by: dispute notice dated 17 June 2021 issued pursuant to s 78 1998 Act; notice dated 25 November 2021 issued pursuant to…

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 234
Decision Date: 7 May 2024

CaseChat Overview and Summary

Hohepa brought a claim against Truserv Pty Ltd for workers' compensation. Hohepa sought weekly compensation under sections 33, 36, 37, and 38 of the Workers Compensation Act 1987, as well as a general order for medical and related expenses under section 60. The central issue was whether Hohepa had sustained an injury to his lumbar spine under sections 4(a), 9A, 4(b)(i), and 4(b)(ii) of the Act.

The court examined the evidence to determine if Hohepa's lumbar spine injury qualified under the specific provisions of the Act. It found that Hohepa did not meet the criteria under sections 4(a), 9A, or 4(b)(i). However, the court concluded that Hohepa did sustain an injury to his lumbar spine under section 4(b)(ii). The court granted a general order for payment of medical and related expenses under section 60 and scheduled a conference to address the calculation of weekly compensation.

The court's decision hinged on a detailed analysis of the statutory provisions and the evidence presented. It carefully distinguished between the different types of injuries recognised by the Workers Compensation Act 1987. The court's ruling was precise and focused on the specific statutory criteria, ensuring that Hohepa's entitlements were assessed accurately. The matter was adjourned for a conference to finalise the compensation calculation.

Orders