Lelov v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Lelov v Blacktown City Council [2024] NSWPIC 91

APPLICANT:

Tony Lelov

RESPONDENT:

Blacktown City Council

MEMBER:

Diana Benk

DATE OF DECISION:

28 February 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation; causation; degree of incapacity; Held – academic vocational assessment not capable of reality testing in the labour market; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37 and section 38.

DETERMINATIONS MADE:

The Commission determines:

1.     The applicant has had no current work capacity from 21 December 2022.

2.     That the pre-injury average weekly earnings figure (PIAWE) is $1,051.88.

3. The respondent is to pay weekly compensation to the applicant pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (80% of the PIAWE) as indexed from 21 December 2022.

STATEMENT OF REASONS

BACKGROUND

1. This matter has a long history in the Personal Injury Commission, (the Commission), and in the interests of brevity will not be slavishly repeated.

2. The only issue that remains in dispute in the present proceedings, is Tony Lelov’s (the applicant) claim for weekly benefits for the balance of the s 37 entitlement period of the Workers Compensation Act 1987 (the Act) (21 December 2022 and 28 March 2023) and then weekly compensation claimed under s 38 of the Act, commencing from 29 March 2023. The applicant claims total incapacity.

3. Despite obtaining an Award for weekly compensation in proceedings commenced in the Commission previously,[1] Blacktown City Council (the respondent), following further independent medical review denied liability for ongoing weekly payments (with effect from 20 December 2022) maintaining incapacity was no longer related to workplace injury and/or in the alternative relied on a vocational assessment dated 12 October 2022 which identified suitable roles which would remunerate the applicant equal to or more than his pre-injury average weekly earnings (PIAWE).

   [1] Certificate of Determination – Matter Number W5468/21 where Member Isaksen determined the applicant suffered injury in the course of his employment and had no work capacity from 3 September 2020.

4. The current proceedings also claimed s 66 lump sum compensation, ultimately determined by Medical Assessor Dr Suman on 12 September who in his Medical Assessment Certificate assessed the applicant as having an 18% whole person impairment (WPI) arising out of workplace injury. This was dealt with via consent orders.

5. At the conciliation/arbitration the applicant was represented by Mr Adhikary of counsel instructed by Mr Gauci. The respondent was represented by Mr Saul of counsel instructed by Ms Palamara. Conciliation was exhausted and the parties sought a determination on the capacity issue.

6. The law relevant to this application is found in the Act.

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;

   (c)    Application to Admit Late Documents (AALD) filed by the applicant on 26 May…