Khoury v Roosters Traffic Control Pty Ltd - [2024] NSWPIC 307

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khoury v Roosters Traffic Control Pty Ltd [2024] NSWPIC 307
APPLICANT:	Tony Khoury
RESPONDENT:	Roosters Traffic Control Pty Ltd
MEMBER:	Sophie Jones
DATE OF DECISION:	13 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for permanent impairment pursuant to section 66; whether the applicant sustained a consequential condition at his lumbar spine as a result of the accepted workplace injuries; degree of permanent impairment resulting from injury; Held – the applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries to his right shoulder and cervical spine on 13 July 2016; the matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition at his lumbar spine as a result of the accepted injuries to his right shoulder and cervical spine on 13 July 2016. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: (a) Date of injury: 13 July 2016 – personal injury (b) Body systems / parts: (i) right upper extremity (right shoulder) (ii) left upper extremity (left shoulder) – consequential condition (iii) spine (cervical spine) (iv) spine (lumbar spine) – consequential condition (v) TEMSKI / scarring (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, (b) Reply and attached documents, and (c) Application to Admit Late Documents and attached documents.

STATEMENT OF REASONS

BACKGROUND

On 13 July 2016, Mr Tony Khoury (the applicant) sustained injuries while working as a traffic controller for Roosters Traffic Control Pty Ltd (the respondent).
The insurer accepted liability for injury to the applicant’s right shoulder and a consequential condition in his left shoulder occurring on 13 July 2016. The applicant underwent right shoulder surgery in October 2016 and further surgery to his right shoulder in January 2020. The applicant subsequently underwent left shoulder surgery in August 2022.
In earlier proceedings related to this matter, before the former Workers Compensation Commission, it was determined that the applicant also suffered a frank injury and consequential condition at his cervical spine on 13 July 2016 and that proposed cervical spine surgery was reasonably necessary.[1]
[1] Workers Compensation Commission matter 5380/18, Decision of Arbitrator Elizabeth Beilby, 13 December 2018. Application page 121.
The applicant underwent cervical spine surgery on 14 February 2019 performed by Dr Renata Abraszko and underwent bilateral carpal tunnel decompression surgery on 2 October 2018 and 11 June 2019, also performed by Dr Abraszko.
On 6 July 2020, the applicant underwent decompressive lumbar surgery at L4/5 and L5/S1 performed by Dr Abraszko, which was approved and paid for by the insurer.[2]
[2] Application to Admit Late Documents, pages 1-2.
The current proceedings relate to a claim made by the applicant on the insurer for compensation for permanent…

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 307
Decision Date: 13 June 2024

CaseChat Overview and Summary

The applicant, Khoury, brought a claim against Roosters Traffic Control Pty Ltd for compensation for permanent impairment under the Workers Compensation Act 1987. Khoury argued that he sustained a consequential condition at his lumbar spine as a result of workplace injuries he had suffered on 13 July 2016, which involved his right shoulder and cervical spine. The primary dispute was whether the lumbar spine condition was a direct result of the workplace injuries and the degree of permanent impairment resulting from these injuries. The case was heard in the relevant tribunal.

The legal issues before the tribunal included determining whether Khoury's lumbar spine condition was indeed a consequential condition arising from his accepted injuries, and if so, to what extent this condition contributed to his overall permanent impairment. The tribunal also had to consider the relevant statutory provisions and any applicable case law to ensure that its decision was consistent with existing legal principles.

The tribunal found that Khoury did sustain a consequential condition at his lumbar spine as a result of his workplace injuries. This conclusion was based on the medical evidence presented, which demonstrated a causal link between the injuries and the lumbar spine condition. The tribunal held that the matter should be remitted to the President for referral to a Medical Assessor to evaluate the degree of permanent impairment resulting from the injuries, including the lumbar spine condition. This comprehensive assessment would provide a clearer picture of the extent of Khoury's permanent impairment and the corresponding compensation he is entitled to receive.

The tribunal's decision did not specify the final orders, as it was focused on the preliminary issue of whether Khoury's lumbar spine condition was a consequential injury. The matter was remitted to the President to facilitate a thorough assessment by a Medical Assessor.

Orders