McPherson v Mitre 10 Australia Pty Ltd - [2022] NSWPIC 410

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McPherson v Mitre 10 Australia Pty Ltd [2022] NSWPIC 410
APPLICANT:	Guye McPherson
RESPONDENT:	Mitre 10 Australia Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	26 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment compensation; worker sought referral in respect of accepted injuries to his thoracic and lumbar spines assessed on his behalf at 0% whole person impairment; Held — no claim for compensation; Skates v Hills Industries discussed; determination of the extent of permanent impairment; Shankar v Ceva Industries discussed; referred to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to describe the injury as: “The applicant suffered injury on 3 April 2018 to his cervical, thoracic and lumbar spines and bilateral shoulders as a result of lifting lintels.” 2. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment. 3. The referral is in respect of: a) Body parts: i) Cervical spine ii) Left upper extremity (shoulder) iii) Right upper extremity (shoulder) b) Date of injury: 3 April 2018 c) Method of assessment: Whole person impairment. 4. The Application to Resolve a Dispute and the Reply are to be sent to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Guye McPherson was employed by Mitre 10 Australia Pty Ltd (Mitre 10) as a yard supervisor. On 3 April 2018 he suffered an injury to his neck, back and shoulders while lifting steel lintels. Mitre 10 does not dispute that it is liable for the consequences of the injury.
Mr McPherson made a claim for permanent impairment compensation on 21 December 2012 and the parties agree that he should be referred to a Medical Assessor. The issue in dispute is whether the referral can include his thoracic and lumbar spines in respect of which he has been assessed by a doctor qualified on his behalf as having 0% whole person impairment (WPI).

PROCEDURE

The claim was listed for telephone conference on 16 June 2022 when Mr Hopper appeared for Mr McPherson and Ms Moylan appeared for Mitre 10.
The pleading of injury in the Application to Resolve a Dispute was amended and that is reflected in the orders made. The injury is pleaded as:
“The applicant suffered injury on 3 April 2018 to his cervical, thoracic and lumbar spines and bilateral shoulders as a result of lifting lintels.”
While Mitre 10 was willing to make an offer of settlement in respect of Mr McPherson’s cervical spine and both shoulders, it disputes that he is entitled to compensation in respect of his thoracic and lumbar spines in respect of which Dr Bodel has assessed 0% WPI.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied…

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: [2022] NSWPIC 410
Decision Date: 26 July 2022

CaseChat Overview and Summary

The plaintiff, McPherson, brought a claim against Mitre 10 Australia Pty Ltd for compensation in relation to permanent impairment arising from injuries sustained during his employment. McPherson's injuries were related to his thoracic and lumbar spines and had been assessed at 0% whole person impairment. The court was tasked with determining whether McPherson was entitled to compensation for his claimed permanent impairment.

The central legal issue was whether McPherson was entitled to compensation for his claimed permanent impairment, despite the assessment of 0% whole person impairment. The court considered the relevant legislative framework and case law, including Shankar v Ceva Industries and Skates v Hills Industries, to understand the criteria for determining permanent impairment compensation. The court also examined the process by which the impairment was assessed and the evidence provided.

The court held that McPherson was not entitled to compensation for his claimed permanent impairment. The assessment of 0% whole person impairment was upheld, and the court found that there was no basis for compensation. The reasoning was based on the principles established in previous cases, which emphasised the importance of a proper assessment process and the weight to be given to the evidence presented. The court was satisfied that the assessment process had been correctly followed and that the evidence did not support a finding of compensable impairment.

No orders were made in favour of the plaintiff, and the defendant was successful in its defence.

Orders