Jones v Donau Pty Ltd - [2021] NSWPIC 139

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Donau Pty Ltd [2021] NSWPIC 139
APPLICANT:	Gavan Jones
RESPONDENT:	Donau Pty Ltd
MEMBER:	Mr Cameron Burge
DATE OF DECISION:	26 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Consequential condition; claim for permanent impairment to both shoulders; frank injury to right shoulder accepted, consequential condition to left shoulder in dispute; Held- in a civil case – particularly where the applicant’s credit is not in issue, the presence or otherwise of corroborative evidence is not determinative of a question of fact such as whether a consequential condition is present; Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 discussed; however, in this matter there was contemporaneous evidence of the applicant complaining of the consequential condition to his treating surgeon in any event; in order to establish the presence of a consequential condition, a worker does not need to satisfy the requirements for injury as set out in section 4 of the 1987 Act; Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 followed; on a common-sense evaluation of the evidence, the applicant suffered a consequential condition to his left shoulder; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed; matter remitted to the President for referral to a Medical Specialist to determine the permanent impairment arising from both the frank right shoulder injury and the consequential condition of the left shoulder.
DETERMINATIONS MADE:	1. Leave is granted to the applicant to amend the Application to Resolve a Dispute by claiming 11% whole person impairment to the right upper extremity and 6% whole person impairment to the left upper extremity in lieu of the impairments currently pleaded. 2. The applicant suffered an injury to his right upper extremity (shoulder) in the course of his employment with the respondent on 11 February 2014. 3. As a result of the injury referred to in paragraph 1 above, the applicant suffered a consequential condition in his left upper extremity (shoulder). 4. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 11 February 2014. Body systems referred: right upper extremity (shoulder), scarring (TEMSKI), left upper extremity (shoulder). Method of assessment: Whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: a. This Certificate of Determination and Statement of Reasons: b. Application to Resolve a Dispute and attachments; and c. Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

On 11 February 2014, Gavan Jones (the applicant) was in the course of his employment as a leading hand/supervisor and OHS safety officer with Donau Pty Ltd (the respondent) when he attempted to catch and support some steel poles which were falling, suffering an accepted injury to his right upper extremity (shoulder).

The applicant’s injury required no fewer than three rounds of surgery, and he alleges that as a consequence of the accepted injury he…

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 Jones v Donau Pty Ltd

Details

AGLC: Jones v Donau Pty Ltd [2021] NSWPIC 139
Case: [2021] NSWPIC 139
Decision Date: 26 May 2021

CaseChat Overview and Summary

Jones was a worker who brought a claim against Donau Pty Ltd for workers' compensation, specifically for a permanent impairment to both shoulders. The frank injury to the right shoulder was accepted, but there was dispute over the consequential condition to the left shoulder. The matter was heard in the Workers Compensation Commission of New South Wales.

The primary legal issue the court had to decide was whether Jones had suffered a consequential condition to his left shoulder, which would entitle him to compensation. The court had to consider whether there was sufficient evidence to establish the presence of such a condition, and whether the lack of corroborative evidence should be determinative of the issue. The court also had to consider whether the presence of a consequential condition required satisfaction of the requirements for injury as set out in section 4 of the Workers Compensation Act 1987 (NSW).

In determining the matter, the court considered the evidence presented and found that there was contemporaneous evidence of Jones complaining of the consequential condition to his treating surgeon. The court held that the presence or otherwise of corroborative evidence was not determinative of a question of fact such as whether a consequential condition was present, particularly in a civil case where the applicant’s credit was not in issue. The court found that on a common-sense evaluation of the evidence, Jones had suffered a consequential condition to his left shoulder. The matter was remitted to the President for referral to a Medical Specialist to determine the permanent impairment arising from both the frank right shoulder injury and the consequential condition of the left shoulder.

The final orders of the court were that Jones was entitled to compensation for the permanent impairment to both shoulders, and that the matter was remitted for the determination of the extent of that impairment. The court also noted that the presence of a consequential condition did not require satisfaction of the requirements for injury as set out in section 4 of the Workers Compensation Act 1987 (NSW).

Orders