Lee v Racing NSW

[2023] NSWPIC 520

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Lee v Racing NSW [2023] NSWPIC 520

APPLICANT:

Glenn Lee

RESPONDENT:

Racing NSW

MEMBER:

John Wynyard

DATE OF DECISION:

3 October 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for surgery for jockey/horse trainer; whether injury is a personal or disease injury pursuant to section 4; whether falls off horses should be categorised as personal injuries; whether principle in Rail Services Australia v Dimovski applicable; Held – facts of nature of applicant’s employment indicated that section 4(b) was applicable; applicant’s employment analogous to that of a shearer; award for applicant.

DETERMINATIONS MADE:

The Commission determines:

1.     The claim for weekly payments is discontinued.

2.     The respondent will pay the cost of and associated with the cost of and incidental to a right hip replacement and/or right hip resurfacing as proposed by Dr Rooney and Dr Farah.

STATEMENT OF REASONS

BACKGROUND

1. Glenn Lee, the applicant, brings an action against Racing NSW, the respondent, for a declaration that proposed surgery is reasonably necessary.

2. Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    whether the proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

1. On 30 August 2023, Mr Luke Morgan appeared for the applicant instructed by Mr Tim Driscoll of Messrs Bilbey Poulden & Costello solicitors. Mr David Saul of counsel appeared for the respondent, instructed by Mr Glenn Dolan from HWL Ebsworth Lawyers. Mr Peter Sweeney appeared for the insurer.

2. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)   Reply and attached documents, and

   (c)    Application to Admit Late Documents (ALD) By the respondent dated
   21 August 2023.

FINDINGS AND REASONS

Amendments and discontinuance

1. At the outset of the hearing, Mr Morgan discontinued the claim for weekly payments.

2. Mr Morgan also amended without objection the claim for medical, hospital and related expenses contained in the ARD form by pleading under, “details of further treatment”, “total right hip replacement and/or incidentals and/or right hip resurfacing, as proposed by Doctors Rooney and Farah.”

Evidence

1. Mr Lee made a statement dated 21 March 2023. He was born in 1971 and he spent most of his working life around horses. He was an apprentice jockey in Queensland in 1987, and then until 1994, a senior jockey when he had to retire from race riding.

2. He…