Micallef v Mathew & Son Pty Ltd - [2023] NSWPIC 669

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Micallef v Mathew & Son Pty Ltd [2023] NSWPIC 669
APPLICANT:	James Micallef
RESPONDENT:	Mathew & Son Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	12 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted injury to lumbar spine; disputed claim for injury to right shoulder; applicant accepted that unless the claim in respect of the right shoulder succeeds the whole claim for lump sum compensation must fail; absence of contemporary complaints of the right shoulder for approximately nine months following the injury despite repeated attendances on his general practitioners and specialists; no explanation by the applicant; finding that the applicant had not discharged his onus of establishing that he suffered injury to his right shoulder; applicant also claimed cost of physiotherapy or exercise physiology in relation to his lumbar spine; no dispute that he continued to suffer pain in his lumbar spine; applicant had undertaken most forms of conservative treatment; Held – weight of the evidence supported the conclusion that the treatment is reasonably necessary as a result of his accepted injury.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in the applicant’s claim for injury to his right shoulder arising out of or in the course of his employment on 12 March 2020 (deemed). 2. The respondent to pay the reasonably necessary costs of physiotherapy in relation to the applicant’s accepted injury to his lumbar spine on 12 March 2020 (deemed).

STATEMENT OF REASONS

BACKGROUND

The applicant, James Micallef, claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his lumbar spine and right shoulder arising out of or in the course of his employment with the respondent, Mathew & Son Pty Ltd, deemed to have occurred on 12 March 2020.
The respondent accepts liability for injury to Mr Micallef’s lumbar spine but disputes his claim in relation to injury to his right shoulder.
Mr Micallef relies on an assessment by orthopaedic surgeon, Dr Medhat Guirgis, that he injured his lumbar spine and right shoulder on 12 March 2020. Dr Guirgis assessed Mr Micallef as having 13% whole person impairment comprising 7% whole person impairment of the lumbar spine and 7% whole person impairment of the right upper extremity.
Mr Micallef agrees that, if his claim for injury to the right shoulder does not succeed, there is no ground on which to refer the lumbar spine injury to a Medical Assessor for assessment of whole person impairment, and his claim for lump sum compensation must fail.
Mr Micallef also claims the cost of treatment pursuant to s 60 of the 1987 Act, particularised as physiotherapy recommended by Independent Medical Examiner, Dr Peter Bentivoglio, and treating neurosurgeon, Dr Peter Khong.

ISSUES FOR DETERMINATION

The parties agree that the issues remaining in dispute are:
(a) whether Mr Micallef suffered injury to his right shoulder on 12 March 2020 (deemed);
(b) if so, whether he is entitled to lump sum compensation,…

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: Micallef v Mathew & Son Pty Ltd [2023] NSWPIC 669
Case: [2023] NSWPIC 669
Decision Date: 12 December 2023

CaseChat Overview and Summary

Micallef sought compensation from Mathew & Son Pty Ltd for injuries sustained at work, specifically to his lumbar spine and right shoulder. The case was heard by the workers' compensation tribunal, where the central issue was whether the applicant had sustained the claimed injuries and if they were work-related. Additionally, the tribunal needed to determine whether the physiotherapy and exercise physiology treatments for his lumbar spine were reasonably necessary.

The tribunal examined the evidence regarding the right shoulder injury, noting that the applicant had not lodged any contemporary complaints about it for nearly nine months despite regular visits to general practitioners and specialists. This lack of complaint, without explanation, led the tribunal to conclude that the applicant had not met his burden of proving that he suffered an injury to his right shoulder. Consequently, the claim for compensation regarding the right shoulder was rejected. Regarding the lumbar spine, the tribunal accepted that the applicant continued to suffer pain and had undergone most forms of conservative treatment. The tribunal found that the weight of the evidence supported the conclusion that the physiotherapy and exercise physiology treatments were reasonably necessary due to the accepted injury to the lumbar spine.

The tribunal ultimately determined that the applicant had not established the work-related injury to his right shoulder, thus failing to prove the entire claim for lump sum compensation. However, the tribunal did find that the physiotherapy and exercise physiology treatments for the lumbar spine were reasonably necessary and awarded compensation accordingly. The tribunal's final order recognised the accepted injury to the lumbar spine but dismissed the claim for the right shoulder injury and costs related to the lumbar spine treatment.

Orders