Kamau v Workers Compensation Nominal Insurer (iCare) - [2023] NSWPIC 348

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kamau v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 348
APPLICANT:	Steven Kamau
RESPONDENT: second respondent:	Chamight Pty Ltd Workers Compensation Nominal Insurer (iCare)
Member:	Karen Garner
DATE OF DECISION:	14 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted laceration to the head; whether the applicant sustained a traumatic brain injury and a high cervical cord lesion injury pursuant to section 4(a) and 9A; Held – applicant did sustain a traumatic brain injury and a high cervical cord lesion injury pursuant to section 4(a) and 9A; matter remitted to the President of the Commission for referral to a Medical Assessor for assessment of permanent impairment in relation to traumatic brain injury and high cervical cord lesion injury.
determinations made:	The Commission declares: 1. The first respondent, Chamight Pty Ltd, commenced to be wound up after entering into a contract with an insurer/scheme agent. 2. The first respondent, Chamight Pty Ltd, was not insured as required by the Workers Compensation Act 1987 (the 1987 Act) at all relevant times. The Commission determines: 1. The applicant sustained a traumatic brain injury on 5 September 2019 in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. 2. The applicant sustained a high cervical cord lesion injury on 5 September 2019 in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. 3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 5 September 2019 Body parts: nervous system cervical spine Method: whole person impairment 4. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attached documents. (b) Application to Admit Late Documents (AALD) by the Nominal Insurer dated 20 March 2023, which contains the Reply to ARD (Reply), with the exception of: (i) statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6), and (ii) Email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15). (c) AALD by the worker dated 29 May 2023, with the exception of: (i) paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated 5 April 2023 (at AALD by worker dated 29 May 2023, page 2). (d) AALD by the Nominal Insurer dated 29 May 2023. 5. The Workers Compensation Nominal Insurer is liable to pay compensation to the applicant pursuant to s 66 of the 1987 Act as if it were the insurer of the first respondent, Chamight…

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: [2023] NSWPIC 348
Decision Date: 14 July 2023

CaseChat Overview and Summary

In the case of Kamau v Workers Compensation Nominal Insurer (iCare), the applicant sought a lump sum compensation for permanent impairment under section 66 of the Workers Compensation Act 1987. The dispute centred around whether the applicant had sustained a traumatic brain injury and a high cervical cord lesion injury, as defined in sections 4(a) and 9A of the Act. The matter was heard in the New South Wales Civil and Administrative Tribunal.

The primary legal issue for the court to determine was whether the applicant's injuries met the statutory definitions of traumatic brain injury and high cervical cord lesion injury under the Workers Compensation Act. This involved a detailed examination of the medical evidence presented, including expert opinions and the applicant's medical history. The court had to assess whether the injuries sustained by the applicant were of the type and severity required to qualify for compensation under the Act.

The court found that the applicant did indeed sustain a traumatic brain injury and a high cervical cord lesion injury, as defined in sections 4(a) and 9A of the Act. The decision was based on the medical evidence, which demonstrated that the applicant's injuries met the statutory criteria. Consequently, the matter was remitted to the President of the Commission for referral to a Medical Assessor to assess the permanent impairment related to the traumatic brain injury and high cervical cord lesion injury. The court's decision ensured that the applicant would receive the appropriate compensation for the injuries sustained.

Orders