Ly v Jitt Offset Pty Ltd

[2021] NSWPICPD 2

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Ly v Jitt Offset Pty Ltd [2021] NSWPICPD 2

APPELLANT:

Van Tho Ly

RESPONDENT:

Jitt Offset Pty Ltd

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-4002/20

MEMBER:

Mr J Isaksen

DATE OF MEMBER’S DECISION:

1 October 2020

DATE OF APPEAL DECISION:

18 March 2021

CATCHWORDS:

WORKERS COMPENSATION – principles applicable to the acceptance or rejection of expert evidence that is not rebutted by contrary expert opinion – Strinic v Singh [2009] NSWCA 15, Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 considered and applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr M Daley, counsel

MN Compensation Lawyers

Respondent:

Mr J Beran, counsel

Hall & Wilcox

ORDERS MADE ON APPEAL:

1.     Determination 1 and Order 2 of the Certificate of Determination dated 1 October 2020 are revoked.

2.     The appellant’s neck condition is a consequential condition resulting from the appellant’s injury to the back occurring on 20 October 1997.

3.     The respondent is to pay the appellant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

4. The matter is remitted to a non-presidential member in order to determine the terms upon which the claim/s pursuant to s 66 of the 1987 Act are to be referred to the medical assessor.

INTRODUCTION AND BACKGROUND

1. Mr Van Tho Ly (the appellant) was employed by Jitt Offset Pty Ltd (the respondent) as a general factory hand. The appellant suffered the onset of lower back pain on 20 October 1997 in the course of his employment with the respondent when he was stacking boxes from a machine. The appellant lodged a claim for compensation with the respondent and the respondent accepted liability.

2. On 10 June 1998, the appellant underwent surgery to his lower back in the form of a spinal decompression and discectomy at the hands of Dr Peter Giblin, orthopaedic surgeon. On 16 May 2000, a consent award was entered in the Compensation Court wherein the respondent agreed to pay the appellant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 22.5% permanent impairment of the back and 7.5% loss of efficient use of the left leg at or above the knee. An award was entered in favour of the respondent “in respect of any claim for permanent impairment of the neck … ”.[1] Further consent orders were entered in the Workers Compensation Commission on 16 October 2007, which dealt with a claim brought by the appellant in relation to his weekly compensation entitlements.

   [1] Short Minutes of Order, Reply to Application to Resolve a Dispute (Reply), p 87.

3. The appellant brought proceedings in the former Workers Compensation Commission in 2020, alleging that the neck symptoms that the appellant was experiencing were a consequence of the lower back injury. The appellant claimed a further 7.5% permanent impairment of the back, a further 2.5% loss of efficient…