Long v GIO General Ltd - [2021] NSWPIC 489

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Long v GIO General Ltd [2021] NSWPIC 489
APPLICANT:	Phillip John Long
RESPONDENT:	GIO General Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	30 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim by worker for compensation pursuant to section 66 for loss of sight of both eyes and for referral of a threshold dispute as a result of injury on 5 April 2001; unanimous evidence of ophthalmic surgeons that worker’s visual system is normal; claim put on the basis that workers spatial difficulties are caused by a traumatic brain injury on 5 April 2001; by a Medical Assessment Certificate dated 18 August 2011 an Approved Medical Specialist had certified that the worker did not suffer a traumatic brain injury; Held – in view of the conflicting evidence, appropriate to refer the matter to a medical assessor for an opinion as to whether the worker’s visual difficulties result from injury.
DETERMINATIONS MADE:	1. Substitute GIO General as the name of the respondent in these proceedings. 2. Remit the matter to the President for referral to a Medical Assessor (neurosurgeon or neurologist with an interest in the brain) to express an opinion on the papers as to whether the applicant’s visual impairment results from the injury on 5 April 2001 bearing in mind the conflicting opinions of Dr Fearnside and Dr Benjamin, on the one hand and Dr Fraser and Dr O’Sullivan on the other, as to whether the applicant suffered a traumatic brain injury. 3. Medical Assessor to have access to the Application to Resolve a Dispute, the Reply, the Applications to Admit Late Documents and the documents attached to each together with a copy of my reasons for this decision. 4. On receipt of the Medical Assessment Certificate list the matter for a further telephone conference at my first available time slot convenient to the parties.

STATEMENT OF REASONS

BACKGROUND

On 5 April 2001, Phillip John Long (the applicant) fell from a ladder and struck his head on a concrete floor in the course of his employment with Colin Green. It is accepted that he suffered an injury to his neck and a fracture of his skull as a result of the fall. GIO General Ltd (the respondent) accepted liability for the injury and the applicant has been paid weekly compensation and permanent impairment compensation in respect of permanent impairment of his neck and permanent loss of use of his left arm at or above the elbow.
Since the injury, the applicant alleges that he has experienced loss of sight of both eyes. On 22 December 2008, he made a claim for permanent impairment compensation in respect of 55% permanent loss of sight of both eyes and for pain and suffering pursuant to s 67. The claim is based upon the report of Dr Peter Duke, an ophthalmic surgeon dated 4 December 2008.
The respondent did not accept that the applicant suffered loss of sight as a result of the injury. It relied on the opinion…

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: [2021] NSWPIC 489
Decision Date: 30 November 2021

CaseChat Overview and Summary

In the case of Long v GIO General Ltd, the plaintiff, Long, sought compensation for the loss of sight in both eyes and the referral of a threshold dispute following an injury sustained on 5 April 2001. The defendant, GIO General Ltd, was the relevant insurer. The case was heard in the Workers Compensation Court of Queensland.

The primary legal issues before the court were whether Long's visual difficulties were caused by the injury sustained on 5 April 2001, and if so, whether they were a result of a traumatic brain injury or another condition. The court needed to assess the credibility and weight of conflicting medical evidence, including the unanimous opinion of ophthalmic surgeons that Long's visual system was normal and the Medical Assessment Certificate dated 18 August 2011, which certified that Long did not suffer a traumatic brain injury.

The court found that the conflicting evidence made it difficult to determine the precise cause of Long's visual difficulties. Given the complexity and the importance of accurate medical assessment, the court deemed it appropriate to refer the matter to a medical assessor for an expert opinion on whether Long's visual difficulties were indeed caused by the injury. This decision was made in the interest of ensuring that Long received a fair and accurate determination of his claim.

The final orders of the court included the referral of the dispute to a medical assessor to provide a detailed opinion on the causation of Long's visual difficulties, and the continuation of the claim process pending the assessor's findings.

Orders