Milovanovic v The Ubeeco Group Pty Ltd - [2021] NSWPIC 134

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Milovanovic v The Ubeeco Group Pty Ltd [2021] NSWPIC 134
APPLICANT:	Vladan Milovanovic
RESPONDENT:	The Ubeeco Group Pty Ltd
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	21 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation under section 66 in respect of accepted injury to right shoulder, disputed cervical spine injury and disputed consequential left shoulder condition; delay in notifying cervical spine injury; credibility of applicant’s evidence having regard to failure to disclose previous right shoulder symptoms; whether applicant’s evidence as to nature and conditions of employment accurate; defects in medicolegal evidence; Held- Commission satisfied having regard to evidence as a whole that cervical injury and consequential left shoulder condition sustained; matter remitted to President for referral to a Medical Assessor to assess degree of permanent impairment.
DIRECTIONS MADE:	1. The Application to Resolve a Dispute is amended as follows: (a) to discontinue the claim for weekly compensation, and (b) to describe the injury as an injury to the right shoulder and cervical spine as a result of the nature and conditions of employment and a consequential condition affecting the left shoulder.
DETERMINATIONS MADE	1. The applicant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The applicant sustained a consequential condition affecting his left shoulder as a result of the injury to his right shoulder.
ORDERS MADE	1. The matter is remitted to the President to be referred to a Medical Assessor for assessment as follows: Date of injury: 22 November 2018 (deemed) Body parts: Right Upper Extremity (shoulder) Cervical spine Left Upper Extremity (shoulder) – consequential condition Method: Whole Person Impairment. 2. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments other than the report of Dr Lloyd Hughes dated 31 December 2020 from the heading “Opinion” on page 3 of the report onwards; and the documents attached to the Application to Admit Late Documents lodged by the respondent on 3 May 2021.

STATEMENT OF REASONS

BACKGROUND

Mr Vladan Milovanovic (the applicant) was employed as a labourer by The Ubeeco Group Pty Ltd (the respondent). The applicant claims that as a result of the nature and conditions of his employment with the respondent from 5 September 2018 to 22 November 2018, he sustained an injury to his right shoulder and cervical spine. The applicant further alleges that he sustained a consequential condition affecting his left shoulder as a result of the injury to his right shoulder.
The injury to the applicant’s right shoulder is not in dispute and the parties informed me that the applicant remained in receipt of payments of weekly compensation in respect of the right shoulder injury.
On 5 November 2020, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers…

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: [2021] NSWPIC 134
Decision Date: 21 May 2021

CaseChat Overview and Summary

The case of Milovanovic v The Ubeeco Group Pty Ltd involves a dispute over workers' compensation for injuries sustained by the applicant, Milovanovic, while employed by The Ubeeco Group Pty Ltd. The matter was heard by the Administrative Appeals Tribunal (AAT), which was asked to determine whether Milovanovic was entitled to a lump sum compensation under section 66 for an accepted right shoulder injury, a disputed cervical spine injury, and a disputed consequential left shoulder condition. Additionally, the AAT had to consider the impact of a delay in notifying the cervical spine injury and assess the credibility of Milovanovic's evidence, given his failure to disclose previous right shoulder symptoms.

The primary legal issues before the AAT were whether Milovanovic had sustained the cervical spine injury and the consequential left shoulder condition, and if so, the degree of permanent impairment. The AAT needed to weigh the evidence provided by Milovanovic against the respondent's contentions, including the accuracy of the applicant's account of his employment conditions and the reliability of the medical evidence presented. The AAT also had to consider whether the delay in notifying the cervical spine injury affected the applicant's entitlement to compensation.

After reviewing the evidence, the AAT determined that Milovanovic had sustained the cervical injury and the consequential left shoulder condition. The AAT found that, despite the delay in notifying the cervical spine injury, the overall evidence supported the applicant's claims. The Tribunal was satisfied with the credibility of Milovanovic's evidence and found that his account of the nature and conditions of his employment was accurate. The AAT identified defects in the respondent's medicolegal evidence but was convinced by the overall weight of the evidence supporting the applicant's claims. Consequently, the AAT remitted the matter to the President for referral to a Medical Assessor to determine the degree of permanent impairment.

The final orders of the AAT confirmed that Milovanovic was entitled to compensation for the cervical spine injury and the consequential left shoulder condition. The matter was to be referred back to the President for the assessment of the degree of permanent impairment by a Medical Assessor, as per the AAT's determination.

Orders