Mackinney v The Executive Inn Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Mackinney v The Executive Inn Pty Ltd [2023] NSWPIC 311

APPLICANT:

Margaret Therese Mackinney

RESPONDENT:

The Executive Inn Pty Ltd

Member:

John Wynyard

DATE OF DECISION:

29 June 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments pursuant to section 37 after payment ceased on basis of respondent medicolegal report; whether accepted back injury had resolved; whether discrepancy in applicant’s case affected her satisfying onus of proof; Held – respondent’s medico-legal opinion logically flawed; aggravation of asymptomatic disc disease had not ceased; alleged discrepancy of no weight; award for the applicant.  

determinations made:

The Commission determines: 

1. The respondent will pay the sum of $360 per week from 19 July 2022 to 3 January 2023 pursuant to s 37of the Workers Compensation Act 1987 (the 1987 Act). 

STATEMENT OF REASONS

BACKGROUND

1. Margaret Therese Mackinney, the applicant, seeks continuing weekly compensation from 19 July 2022 to date and continuing.

2. Dispute notices were issued on behalf of the respondent, The Executive Inn Pty Ltd.

3. 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)    Has the accepted back injury resolved?

   (b)    If not, is Ms Mackinney entitled to weekly payments of compensation?

   (c) If so, what is the extent of Ms Mackinney’s entitlement pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act)?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties attended a teleconference on 6 March 2023. The applicant was represented by Mr Mario Bechelli of Messrs Whitelaw McDonald, solicitors. Mr Mark Van der Hout from Messrs BBW Lawyers appeared for the respondent.

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

PRELIMINARY

1. After a discussion at teleconference I ordered that the matter be dealt with by way of written submissions.

Documentary evidence

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

   (a)    ARD and attached documents, and

   (b)    Reply and attached documents.

   Written submissions

   (a)     respondent dated 31 March 2023;

   (b)     applicant dated 14 April 2023, and

   (c)     respondent in reply dated 24 April 2023.

Oral evidence

1. No application was made in relation to oral evidence.

FINDINGS AND REASONS

Evidence

Ms Mackinney

1. Ms Mackinney made a statement dated 16 November 2022. She outlined her work history, noting that she left school at age 16 and worked variously as a shop assistant, a bar attendant, and after taking eight years off while she had her three children, further bar work for…