Krajewski v Otis Elevator Company Pty Ltd - [2022] NSWPIC 46

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Krajewski v Otis Elevator Company Pty Ltd [2022] NSWPIC 46
APPLICANT:	Leon Michael Krajewski
RESPONDENT:	Otis Elevator Company Pty Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	4 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for past medical and related treatment payable under section 60 of the Workers Compensation Act 1987 (1987 Act) and claim for permanent impairment compensation payable under section 66 of the 1987 Act for permanent impairment resulting from injury sustained to the cervical spine, lumbar spine, left upper extremity (left shoulder), left lower extremity (left knee) and scarring; while it was not disputed the applicant sustained injury to his lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the course of his employment with the respondent, it was disputed he sustained these injuries as a result of the nature and conditions of his employment with the respondent; it was disputed the applicant sustained injury to his cervical spine as a result of the nature and conditions of his employment with the respondent; the deemed date of injury was also disputed; Held - the applicant sustained injury to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the nature of a disease injury with his employment with the respondent being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury; the deemed date of injury is the date the applicant made his claim for permanent impairment compensation; the applicant has an entitlement to medical and related treatment payable under section 60 of the 1987 Act and the cervical spine surgical treatment the applicant came to was reasonably necessary treatment for the injury he sustained to his cervical spine; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	1. By consent, the Application to Resolve a Dispute is amended to include a claim for permanent impairment compensation resulting from scarring, with a deemed date of injury of 28 August 2020. 2. The applicant sustained injury to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the nature of a disease injury with his employment with the respondent being the main contributing factor to the contracting and the aggravation, acceleration, exacerbation or deterioration of the disease injury. 3. The deemed date of injury is 28 August 2020. 4. The applicant has an entitlement to medical and related treatment payable under s 60 of the Workers Compensation Act 1987 for the injury in the nature of a disease injury he sustained to his cervical spine, lumbar spine, left upper extremity (left shoulder) and left lower extremity (left knee) in the course of his employment with the respondent. The cervical spine surgical treatment the applicant came to under the care of Dr Al Khawaja was reasonably necessary treatment…

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 46
Decision Date: 4 February 2022

CaseChat Overview and Summary

In the matter of Krajewski v Otis Elevator Company Pty Ltd, the applicant sought compensation for injuries sustained during his employment with the respondent. The injuries in question involved his cervical spine, lumbar spine, left shoulder, left knee, and scarring. The primary dispute centred on whether these injuries resulted from the nature and conditions of the applicant's employment with the respondent, as well as the date deemed to be the onset of the injury. The matter was heard in the Court of Appeal.

The legal issues before the court included determining the extent to which the respondent's employment contributed to the applicant's injuries, the specific nature of those injuries, and the date from which compensation should be calculated. Additionally, the court needed to assess whether certain medical treatments were reasonably necessary and whether the applicant was entitled to compensation for permanent impairment.

The court held that the applicant's employment with the respondent significantly contributed to the contracting and aggravation of the diseases resulting in his injuries. The deemed date of injury was established as the date the applicant filed his claim for permanent impairment compensation. The court also determined that the applicant was entitled to reimbursement for medical and related treatments under section 60 of the Workers Compensation Act 1987, including cervical spine surgery, which was deemed reasonably necessary. The applicant's claim for permanent impairment compensation was remitted to the President for referral to a Medical Assessor for further assessment of whole person impairment.

Orders