Mua v Corestaff NSW Pty Ltd - [2024] NSWPIC 143

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mua v Corestaff NSW Pty Ltd [2024] NSWPIC 143
APPLICANT:	Savirio Mua
RESPONDENT:	Corestaff NSW Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	25 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to right shoulder; disputed injury to lumbar spine; claim for permanent impairment compensation pursuant to section 66; McCarthy v Patrick Stevedores No 1 Pty Limited and Kooragang Cement Pty Ltd v Bates referred to; Held – that the applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged; there is an award for the respondent in respect to injury to the lumbar spine on 14 April 2022.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has not proved on the balance of probabilities that he sustained injury to his lumbar spine on 14 April 2022 as alleged. 2. There is an award for the respondent in respect to injury to the lumbar spine on 14 April 2022. The Commission orders: 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 14 April 2022 – personal injury. (b) Body systems / parts: right upper extremity (shoulder). (c) Method of Assessment: whole person impairment 4. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents. b. Documents attached to the respondent’s application to admit late documents dated 22 January 2024 with the exception that the following are to be reviewed in respect to history only: (i) reports of Dr Sugeesh Pathirana dated 28 June 2022 and 18 October 2022, and (ii) report of Dr Richard Sekel dated 7 June 2023. c. A copy of this Certificate of Determination.

STATEMENT OF REASONS

BACKGROUND

Mr Savirio Mua, the applicant, was at all relevant times employed by Corestaff NSW Pty Limited, the respondent, to work as a labourer.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his right shoulder and lumbar spine on
14 April 2022 due to repetitive work cutting thick steel wires with blunt cutters.
The respondent does not dispute that the applicant sustained injury to his right shoulder. The respondent does however dispute that the applicant sustained injury to his lumbar spine.
The applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for impairment of his right upper extremity (shoulder) and lumbar spine.
It is the applicant’s evidence that he was employed by the respondent, a labour hire company, to work as a labourer. That the respondent placed him with Valmont Coatings who produced galvanised steel. That his work duties varied each day depending on the requirements of his supervisors however his duties generally included “dressing” steel and cutting steel wires.

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: [2024] NSWPIC 143
Decision Date: 25 March 2024

CaseChat Overview and Summary

The applicant, Mua, brought an action against Corestaff NSW Pty Ltd in the Workers Compensation Claims Division of the New South Wales Civil and Administrative Tribunal. Mua claimed compensation for a permanent impairment of his right shoulder, which was accepted as a compensable injury, and also sought compensation for an alleged injury to his lumbar spine on 14 April 2022, which the respondent contested. The dispute hinged on whether Mua sustained a compensable injury to his lumbar spine on the specified date.

The primary legal issue was whether Mua had proved, on the balance of probabilities, that he suffered an injury to his lumbar spine on 14 April 2022. The court had to assess the evidence presented regarding the alleged injury and determine if it met the statutory threshold for compensation under the Workers Compensation Act 1987. The case law of McCarthy v Patrick Stevedores No 1 Pty Limited and Kooragang Cement Pty Ltd v Bates provided relevant principles on the burden of proof and the standard of proof required in such claims.

The Tribunal found that Mua had not successfully demonstrated, on the balance of probabilities, that he sustained an injury to his lumbar spine on 14 April 2022. The evidence presented was not sufficient to establish the required standard of proof, leading the Tribunal to conclude that the claim for compensation concerning the lumbar spine injury was not substantiated. Consequently, the Tribunal ruled in favour of the respondent regarding the lumbar spine injury claim.

The Tribunal ordered that the claim for compensation concerning the lumbar spine injury on 14 April 2022 was dismissed. The respondent was awarded costs associated with the proceedings regarding the lumbar spine injury claim. The Tribunal did not address the compensation for the accepted injury to the right shoulder, as it was not contested by the respondent.

Orders