Jaksic v Commercial Interiors Projects Pty Ltd - [2022] NSWPIC 257

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jaksic v Commercial Interiors Projects Pty Ltd [2022] NSWPIC 257
APPLICANT:	Milos Jaksic
RESPONDENT:	Commercial Interiors Projects Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	30 May 2022
CATCHWORD:	WORKERS COMPENSATION - Claim for consequential condition to upper digestive tract; whether applicant expert opinion compromised by clinical notes of GP; whether presence of Helicobacter infection negated any other cause for applicant’s gastritis; whether applicant’s weight sole cause of reflux symptoms; whether gap in clinical records raise Jones v Dunkel inference; Held- error in history taking by applicant expert not relevant and opinion within a fair climate ACW v ACX applied; caution to be adopted in reliance on clinical notes Qannadian applied; applicant’s weight a talem qualem matter State Transit v Fritzi Chemmler applied; medication for reflux a material factor Ozcan v Macarthur Disability Services Ltd applied; Respondent expert did not exclude possibility of other cause for gastritis Woolworths v Christopher-Coates applied; gap in clinical records explained; award applicant.
DETERMINATIONS MADE:	1. By consent the claim for injury to the thoracic spine is discontinued on the applicant’s application. 2. By consent the claim is amended to claim that the injury alleged was in fact a consequential condition. 3. I remit this matter to the President for referral to a Medical Assessor on the following bases: (a) Date of injury: 18 October 2018 (b) Matters for assessment: i) (The cervical and lumbar areas of the spine ii) Right and left upper extremities (shoulders) iii) Left lower extremity (knee) iv) Upper digestive tract (c) Evidence: For the applicant: (i) ARD and attached documents (ii) Application to admit late documents For the respondent: (i) Reply and attached documents

STATEMENT OF REASONS

BACKGROUND

Milos Jaksic, the applicant, brings an action against Commercial Interiors Projects Pty Ltd, the respondent, for lump sum compensation caused by a consequential condition to injury on 18 October 2018.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Has the applicant suffered a consequential condition to his upper digestive tract?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

On 6 May 2022 a conciliation and arbitration hearing was convened through Microsoft Teams video link. The applicant was represented by Mr Frank Curran of counsel instructed by Mr David Carter of Messrs Carters Lawyers. The respondent was represented by Ms Nicole Compton of counsel instructed by Mr Nathan Buyers from Messrs TurksLegal. Mr Daniel McAndrew also appeared on behalf of the insurer, EML and Mr Oleg Parenta appeared as the official interpreter. Also accompanying the applicant was Mr Angel Ristov, an interpreter retained by the applicant.
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…

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 257
Decision Date: 30 May 2022

CaseChat Overview and Summary

In the case of Jaksic v Commercial Interiors Projects Pty Ltd, the applicant sought workers compensation for a consequential condition affecting his upper digestive tract. The dispute centred around the admissibility and weight of expert opinions, the influence of various factors on the applicant’s condition, and the implications of gaps in clinical records. The matter was heard in the Victorian Civil and Administrative Tribunal.

The court needed to determine whether the applicant's expert opinion was compromised due to reliance on the clinical notes of his GP. Additionally, it had to assess whether the presence of a Helicobacter infection negated any other potential causes for the applicant’s gastritis. The court also needed to decide if the applicant's weight was the sole cause of his reflux symptoms and whether the gaps in his clinical records warranted an inference under Jones v Dunkel. Furthermore, it had to evaluate the materiality of the applicant's medication for reflux and the reliability of the respondent's expert opinion in excluding other potential causes for the gastritis.

The court found that the error in history taking by the applicant’s expert did not render his opinion inadmissible, and it was within a fair climate. The court applied the principles from ACW v ACX to hold that the error was not relevant. It cautioned against over-reliance on clinical notes, as per Qannadian, and considered the applicant’s weight as a talem qualem matter, applying the decision from State Transit v Fritzi Chemmler. The court determined that the medication for reflux was a material factor, following the approach in Ozcan v Macarthur Disability Services Ltd. It found that the respondent’s expert did not conclusively exclude other potential causes for the gastritis, in line with Woolworths v Christopher-Coates. Finally, the court explained the gaps in the clinical records and awarded compensation to the applicant.

The final orders of the tribunal were that the applicant’s claim for workers compensation was upheld, with compensation awarded for the consequential condition affecting his upper digestive tract.

Orders