Kennedy v Boral Limited - [2022] NSWPIC 312

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kennedy v Boral Limited [2022] NSWPIC 312
APPLICANT:	Francis Kennedy
RESPONDENT:	Boral Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	21 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for 52 weeks of weekly compensation; accepted injury to left hamstring and left shoulder; whether the applicant sustained separate injuries to the left knee and hip in the same event; extent of incapacity resulting from injury; Held– award for the respondent on the allegation of left knee and hip injury; knee and hip symptoms attributed to the left hamstring injury; the applicant had in the relevant period no current work capacity; award for the applicant with respect to the claim for weekly compensation.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claim of a separate “injury” to the left knee and left hip in the event on 20 April 2020. 2. The applicant has, in the period of 52 weeks commencing on 20 April 2020, had no current work capacity as a result of the injury on 20 April 2020. 3. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 for a period of 52 weeks commencing on 20 April 2020, based on a pre-injury average weekly earnings (PIAWE) rate of $1,422, as periodically indexed. 4. The respondent to have credit for payments already made subject to ss 49 and 50 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Francis Kennedy (the applicant), who is currently 70 years old, was employed as a concrete agitator truck driver by Boral Limited (the respondent). On 20 April 2020, the applicant was helping another driver load concrete blocks onto a trailer when he tripped and fell.
Liability for an injury in that event was disputed by the self insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 April 2020. In particular, it was determined that the injury did not occur in the course of employment or arise out of employment for the purposes of s 4 of the Workers Compensation Act 1987 (the 1987 Act), and that employment was not a substantial contributing factor to the injury as required by s 9A of the 1987 Act.
The decision to dispute liability was maintained following internal review in a further notice issued on 6 August 2020.
A further dispute notice was issued pursuant to s 78 of the 1998 Act on 28 July 2021, disputing that the applicant sustained any injury or consequential condition to the left knee, left hip or left shoulder as a result of the event on 20 April 2020. The applicant’s entitlement to weekly compensation and compensation pursuant to ss 60 and 66 of the 1987 Act was also disputed.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 15…

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 312
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the case of Kennedy v Boral Limited, the applicant sought compensation for a period of 52 weeks following an injury to their left hamstring and left shoulder. The dispute centred on whether the applicant had sustained separate injuries to the left knee and hip in the same incident. The court had to determine the extent of the incapacity resulting from the injuries and whether the applicant was entitled to weekly compensation. The case was heard in the relevant Australian court.

The primary legal issues involved the identification and characterisation of the injuries sustained by the applicant. The court had to consider whether the injuries to the left knee and hip were distinct from the injuries to the left hamstring and left shoulder. Additionally, the court needed to assess the extent of the incapacity caused by the injuries and determine the appropriate period for which the applicant was entitled to weekly compensation. The court's analysis focused on the medical evidence and the applicant's capacity to work during the relevant period.

The court found that the symptoms experienced in the left knee and hip were attributable to the left hamstring injury. Consequently, the applicant did not sustain separate injuries to the left knee and hip. The court determined that the applicant had no current work capacity during the relevant period. However, the court found in favour of the applicant on the claim for weekly compensation. The court concluded that the applicant was entitled to compensation for the period of 52 weeks, as the injuries to the left hamstring and left shoulder resulted in a significant incapacity.

The court ordered that the respondent was to pay the applicant compensation for the period of 52 weeks. The court further directed that the claim regarding the alleged separate injuries to the left knee and hip was to be dismissed. The decision highlighted the importance of accurately identifying the injuries and assessing the extent of incapacity when determining compensation claims.

Orders