Maseyk v Racing NSW - [2022] NSWPIC 633

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Maseyk v Racing NSW [2022] NSWPIC 633
APPLICANT:	Melvyn Maseyk
RESPONDENT:	Paul Perry Horse Training Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	16 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and order sought for the payment of future medical treatment; whether the worker continues to suffer the effects of the work injury to his lower back; whether the worker has no current work capacity or has an ability to earn in suitable employment; reference to Wollongong Nursing Home v Dewar and Popal v Myer Holdings P/L; Held – the worker continues to suffer the effects of the work injury to his lower back; the worker has had no current work capacity since 24 July 2021; award of weekly payments pursuant to section 37 (1) of the Workers Compensation Act 1987; the respondent to pay for radiofrequency ablation therapy recommended by the applicant’s treating specialist.
determinations made:	1. The applicant continues to suffer the effects of an injury to his lumbar spine and left shoulder which was sustained while in the course of his employment with the respondent on 23 October 2020. 2. The applicant has had no current work capacity from 24 July 2021 as a result of the injury sustained to his lumbar spine and left shoulder in the course of his employment with the respondent on 23 October 2020. 3. The radio frequency ablation therapy proposed by Dr Salaria is reasonably necessary as a result of the injury sustained by the applicant on 23 October 2020.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37 (1) of the Workers Compensation Act 1987 as follows: a) $1,161.45 per week from 24 July 2021 to 30 September 2021; b) $1,175.30 per week from 1 October 2021 to 31 March 2022; c) $1,196.90 per week from 1 April 2022 to 30 September 2022, and d) $1,237.25 per week from 1 October 2022 to date and continuing. 2. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the costs of the radio frequency ablation therapy proposed by Dr Salaria.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Melvyn Maseyk, sustained an injury to his lower back and left shoulder on 23 October 2020 while employed as a trackwork rider for the respondent, Paul Perry Horse Training Pty Ltd.
The applicant states he was riding a horse to a stable when the horse suddenly flipped over, and the applicant fell awkwardly and the horse landed on top of him.
The respondent concedes that the applicant did sustain injury to his lower back and left shoulder on 23 October 2020, and the applicant was paid weekly payments of compensation from January 2021 until 23 July 2021.
Racing NSW issued a dispute notice on behalf of the respondent on 9 July 2021 wherein it disputed liability on the grounds that the applicant’s…

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

AGLC: Maseyk v Racing NSW [2022] NSWPIC 633
Case: [2022] NSWPIC 633
Decision Date: 16 November 2022

CaseChat Overview and Summary

In Maseyk v Racing NSW, the applicant sought weekly compensation payments and an order for the payment of future medical treatment due to a work-related injury to his lower back. The court was tasked with determining whether the applicant continues to suffer the effects of the injury and if he has any current work capacity or the ability to earn in suitable employment. The decision hinged on the interpretation of relevant statutory provisions and referenced precedents such as Wollongong Nursing Home v Dewar and Popal v Myer Holdings P/L.

The legal issues before the court were whether the applicant's lower back injury continued to impact him and if he had been without work capacity since 24 July 2021. The court needed to assess the applicant's current medical condition, his ability to work, and the necessity for further medical treatment. The court also had to consider whether the employer should be liable for the costs of recommended medical procedures.

The court found that the applicant continues to suffer from the effects of the work injury to his lower back and has had no work capacity since 24 July 2021. The court ordered weekly payments to the applicant pursuant to section 37(1) of the Workers Compensation Act 1987. Additionally, the court ruled that the employer must cover the costs of radiofrequency ablation therapy recommended by the applicant’s treating specialist. This decision was based on the applicant's ongoing medical needs and the statutory obligations of the employer under workers compensation law.

Orders