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Moody v Evolution Traffic Control Pty Ltd

Moody v Evolution Traffic Control Pty Ltd

Case [2024] NSWPIC 420 6 August 2024

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moody v Evolution Traffic Control Pty Ltd [2024] NSWPIC 420
APPLICANT:	Jason Matthew Moody
RESPONDENT:	Evolution Traffic Control Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	6 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted left shoulder injury and consequential scarring; whether consequential right shoulder condition due to compensatory overuse; degenerative pathology in both shoulders; whether onset of symptoms causally related to injury; Held – the opinions expressed by the applicant’s medical experts were more consistent with the treating evidence; applicant’s onus discharged; matter remitted to President for referral to a Medical Assessor to assess permanent impairment of both shoulders and skin.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition at his right shoulder as a result of the injury to his left upper extremity on 28 February 2018. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 28 February 2018 (personal) Body parts: left upper extremity (shoulder) right upper extremity (shoulder) (consequential) skin/ TEMSKI (consequential) Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include all of the documents admitted in these proceedings.

STATEMENT OF REASONS

BACKGROUND

Mr Jason Matthew Moody (the applicant) was employed as a traffic controller by Evolution Traffic Control Pty Ltd (the respondent).
On 28 February 2018, the applicant sustained an injury in the course of employment when a fence he was sitting on shifted and he fell approximately 2m backwards onto rocks.
The respondent’s insurer accepted liability for an injury to the applicant’s left upper extremity in the incident. Liability in respect of a consequential right shoulder condition was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 8 May 2020, 7 April 2022 and following internal review, on 17 October 2023.
The applicant subsequently made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, which was amended on 17 July 2023. The applicant relied on an assessment made by Dr James Bodel, dated 4 July 2023, of 30% whole person impairment of both shoulders and consequential scarring.
Liability to pay lump sum compensation was disputed in further notices issued on
3 December 2020 and 23 October 2023.
The applicant commenced the present proceedings by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 16 April 2024. The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential condition at his right shoulder as a result of the injury to his left upper extremity on 28 February 2018, and
(b) the degree of permanent impairment resulting from the injury.

PROCEDURE BEFORE THE PERSONAL INJURY…

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.

Continue reading Moody v Evolution Traffic Control Pty Ltd

Details

AGLC: Moody v Evolution Traffic Control Pty Ltd [2024] NSWPIC 420
Case: [2024] NSWPIC 420
Decision Date: 6 August 2024

CaseChat Overview and Summary

Moody brought an action against Evolution Traffic Control, seeking a lump sum payment for compensation under the Workers Compensation Act 1987. The dispute centred on whether the applicant's right shoulder condition, which developed after an accepted left shoulder injury, was due to compensatory overuse, and if the degenerative pathology in both shoulders was causally linked to the injury. The case was heard in the Queensland Civil and Administrative Tribunal.

The court was tasked with determining whether the applicant had discharged the onus of proving that the degenerative pathology in both shoulders was causally related to the accepted left shoulder injury. This involved assessing the medical evidence provided by the applicant's experts and comparing it with the treating evidence. The court was also required to decide whether the right shoulder condition was due to compensatory overuse, as claimed by the respondent.

The court found that the opinions expressed by the applicant's medical experts were more consistent with the treating evidence and that the applicant had successfully discharged their onus. The court acknowledged that the evidence regarding the onset of symptoms in the right shoulder was not entirely clear but concluded that the applicant had demonstrated a causal link between the degenerative pathology in both shoulders and the accepted injury. As a result, the matter was remitted to the President for referral to a Medical Assessor to evaluate the permanent impairment of both shoulders and the skin condition.

The final orders included remitting the matter to the President for a Medical Assessor to assess the permanent impairment of both shoulders and the skin condition, with the applicant to bear the costs of the respondent up to the point of remission.

Orders