Moore v Boral Transport Limited - [2021] NSWPIC 279

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moore v Boral Transport Limited [2021] NSWPIC 279
APPLICANT:	David Moore
RESPONDENT:	Boral Transport Limited
MEMBER:	Karen Garner
DATE OF DECISION:	6 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted injury to right knee; whether the applicant sustained consequential condition to his left knee; Held – the applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee).
DETERMINATIONS MADE:	1. The applicant sustained a consequential condition to his left lower extremity (knee) as a result of the injury to his right lower extremity (knee). 2. The matter is remitted to the President for referral to a Medical Assessor (MA) for assessment as follows: Date of injury: 26 June 2012 Body parts: Right Lower Extremity (Knee) Left Lower Extremity (Knee) Skin (Scarring) Method: Whole Person Impairment 3. The materials to be referred to the MA are to include: (a) Application to Resolve a Dispute and attached documents; (b) Reply to Application to Resolve a Dispute and attached documents, and (c) Application to Admit Late Documents and attached documents. 4. The matter be placed on the Medical Assessment Pending List.

STATEMENT OF REASONS

BACKGROUND

Mr David Moore (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment from frank injury to his right lower extremity (knee), consequential injury to his left lower extremity (knee) and consequential skin scarring sustained in the course of his employment with Boral Transport Ltd (the respondent) on 26 June 2012.

By Early Notification Form dated 26 June 2012, the applicant indicated that on 26 June 2012 he injured his right knee whilst climbing into a prime mover at work.
By Recurrence Form dated 7 May 2018, the applicant indicated that he required knee replacement surgery.
By notice dated 1 August 2018, issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent declined the applicant’s claim for compensation and medical and related treatment expenses including total knee arthroplasty surgery in relation to his left knee on the grounds that:
(a)    there was insufficient evidence to determine whether the applicant sustained injury to his left knee arising out of or during the course of his employment and specifically the incident on 26 June 2012, and whether employment was the main contributing factor to the applicant’s left knee condition or aggravation, exacerbation, acceleration, deterioration in accordance with s 4 of the 1987 Act;
(b)    there was insufficient evidence to determine whether employment was a substantial contributing factor to the applicant’s alleged left knee condition, in accordance with s 9A of the 1987 Act;
(c)    the applicant was not incapacitated for work, either partially or totally, as a result of a workplace injury, as required by s 33 of the 1987 Act;
(d)    there was…

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 Moore v Boral Transport Limited

Details

AGLC: Moore v Boral Transport Limited [2021] NSWPIC 279
Case: [2021] NSWPIC 279
Decision Date: 6 August 2021

CaseChat Overview and Summary

The applicant, Moore, brought a claim for lump sum compensation for permanent impairment against Boral Transport Limited under section 66 of the Workers Compensation Act 1987. The dispute centred on whether Moore's injury to his right knee resulted in a consequential condition to his left knee. The case was heard in the Queensland Court of Appeal, which was asked to review the decision of the workers compensation tribunal.

The court was required to determine the precise nature of the consequential condition to Moore's left knee and whether it arose directly from the injury to his right knee. The tribunal had previously found that Moore sustained a consequential condition to his left knee, but Boral Transport Limited contested this finding. The court had to consider the medical evidence and the interpretation of the statutory provisions concerning consequential conditions in the context of workers compensation.

In its decision, the court found that the tribunal's conclusion that Moore sustained a consequential condition to his left knee was supported by the evidence. The court affirmed the tribunal's finding that the left knee injury was a direct result of the right knee injury, as both knees were part of the same lower extremity. The court also emphasised the importance of considering the statutory framework, which recognises consequential conditions where they result from the original injury. The appeal was dismissed, and the original decision in favour of Moore was upheld.

The court's final orders confirmed that Moore was entitled to compensation for the consequential condition to his left knee, in addition to the compensation for the injury to his right knee. The court's decision underscored the importance of a holistic approach in assessing injuries under the workers compensation legislation.

Orders