Neemia v Busways Penrith Pty Ltd - [2023] NSWPIC 678

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Neemia v Busways Penrith Pty Ltd [2023] NSWPIC 678
APPLICANT:	Ali Neemia
RESPONDENT:	Busways Penrith Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	18 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to his cervical spine and right shoulder, sustained on 26 October 2021; whether the applicant sustained a consequential condition of the left shoulder as a result of the accepted injury to his cervical spine and right shoulder; Held – the applicant sustained a consequential condition of his left shoulder as a result of the accepted injury to his cervical spine and right shoulder, sustained on 26 October 2021; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition of his left shoulder, as a result the accepted injuries to his cervical spine, and right shoulder sustained on 26 October 2021. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 26 October 2021 (with consequential condition). Body parts: cervical spine right upper extremity (shoulder) left upper extremity (shoulder) TEMSKI/scarring Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attachments; (b) Reply to Application to Resolve a Dispute and attachments, and (c) Application to Admit Late Documents and attachments.

STATEMENT OF REASONS

BACKGROUND

Ali Neemia (the applicant) injured his cervical spine and right shoulder in the course of his employment as a bus driver with Busways Penrith Pty Ltd (the respondent) on 26 October 2021.
The respondent admitted liability for the applicant’s cervical spine injury and right shoulder injury on 26 October 2021 (the accepted injuries).
The applicant underwent spinal surgery, in the form of right C5/6 foraminotomy and decompression (the surgery), on 16 December 2021.
The applicant made a claim for lump sum permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for total 33% whole person impairment (WPI) from injury on 26 October 2021 in respect of injury on 26 October 2021 to the cervical spine and the right shoulder, with consequential condition of the left shoulder. It was calculated on the basis of 22% WPI to the cervical spine, 12% WPI of the right shoulder and 3% WPI of the left shoulder, in accordance with the assessment of Dr Mark Ridalgh, consultant neurologist.
The respondent disputes liability for the claim of consequential condition of the left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation conference and arbitration hearing on 23 November 2023, the applicant was represented by Ms Sue Bowrey, solicitor of Bowrey Lawyers. The respondent was represented by Mr Josh Beran of counsel, instructed by Mr Stephen Lott of Hall & Wilcox Lawyers.
I…

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: [2023] NSWPIC 678
Decision Date: 18 December 2023

CaseChat Overview and Summary

The applicant, Neemia, sought lump sum compensation for permanent impairment under the Workers Compensation Act 1987. The claim was against Busways Penrith Pty Ltd, and the dispute centred on whether Neemia's left shoulder injury was a consequence of the injuries to his cervical spine and right shoulder, which were already recognised. The matter was heard and determined by the relevant authority.

The legal issues before the court were whether the injury to the left shoulder was a direct consequence of the previously accepted injuries. This required consideration of the causal link between the injuries and the extent to which they were interrelated. The court had to determine if the left shoulder injury could be classified as a consequential condition under the terms of the Workers Compensation Act 1987.

After reviewing the evidence, the court concluded that Neemia's left shoulder injury was indeed a consequential condition arising from the injuries to his cervical spine and right shoulder. This finding was based on the medical evidence presented, which showed a direct causal relationship between the initial injuries and the subsequent condition of the left shoulder. As a result, the matter was remitted to the President for further proceedings, specifically for referral to a Medical Assessor to evaluate the whole person impairment. This assessment will determine the appropriate quantum of the lump sum compensation payable to Neemia.

Orders