Larden v Ford - [2024] NSWPIC 466

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Larden v Ford [2024] NSWPIC 466
APPLICANT:	Daniel James Larden
RESPONDENT:	Alan Sidney Ford
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation with respect to accepted injuries to right elbow and right shoulder and resulting scarring; respondent disputed that applicant had also sustained injury to cervical spine; first record of injury to cervical spine over one year after date of injury; differing accounts of mechanism of injury; Onassis v Vergottis, Watson v Foxman, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins and Nguyen v Cosmopolitan Homes considered; Held – award for the respondent for claim for injury to cervical spine; matter remitted to the President for referral to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent for the claim for injury to the cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 7 January 2020. Body systems/parts: right upper extremity (right elbow and right shoulder) and TEMSKI/scarring. 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 dated 12 July 2024 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Daniel James Larden (Mr Larden) was employed by the respondent, Alan Sidney Ford, as a farm hand/fencing labourer.
On 7 January 2020, the applicant sustained an injury to his right elbow and right shoulder when he was kicked by a sheep. He also claims to have sustained an injury to his neck.
By letter dated 18 July 2023, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed the sum of $65,050 in respect of 24% whole person impairment (WPI) as a result of injury to his right upper extremity (right elbow and right shoulder); cervical spine; and TEMSKI/scarring.
On 28 November 2023, the respondent’s insurer, EML, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant’s injury had resulted in more than 10% permanent impairment, as required by s 66(1) of the 1987 Act.
EML did not dispute that the applicant had sustained injury to his right elbow and right shoulder, or that his scarring resulted from the surgery he had undergone.
EML disputed that the applicant had sustained injury to his cervical spine; that employment was a substantial contributing factor to such injury; and that employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation…

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 Larden v Ford

Details

AGLC: Larden v Ford [2024] NSWPIC 466
Case: [2024] NSWPIC 466
Decision Date: 23 August 2024

CaseChat Overview and Summary

In the case of Larden v Ford, the applicant sought compensation for permanent impairment arising from accepted injuries to the right elbow and right shoulder, along with associated scarring. The respondent contested the claim, asserting that the applicant had not sustained an injury to the cervical spine. The initial documentation of the cervical spine injury surfaced more than a year after the date of the initial injury, with conflicting accounts regarding the mechanism of the injury. The matter was heard in the Workers Compensation Court.

The legal issues that the court was required to address centred on the existence and extent of the cervical spine injury. The court had to consider the credibility of the parties' accounts of the mechanism of injury and the significance of the delayed documentation of the cervical spine injury. The court referred to several precedent cases, including Onassis v Vergottis, Watson v Foxman, Nominal Defendant v Clancy, Davis v Council of the City of Wagga Wagga, King v Collins, and Nguyen v Cosmopolitan Homes, to aid in its analysis. These cases provided guidance on the importance of timeliness in reporting injuries and the assessment of credibility in disputed claims.

The court determined that the applicant had not sustained an injury to the cervical spine. The reasoning included the delayed reporting of the injury, the lack of contemporaneous medical evidence, and the conflicting accounts of the mechanism of injury. Consequently, the court awarded the respondent compensation for the claim concerning the cervical spine injury. The matter was then remitted to the President for referral to a Medical Assessor for further consideration of the applicant's other claims.

The final orders of the court included a direction that the matter be referred to a Medical Assessor for reassessment of the applicant's claims for compensation in relation to the right elbow and right shoulder injuries, excluding the claim for injury to the cervical spine. The court's decision highlighted the importance of timely reporting and credible evidence in workers compensation claims.

Orders