Nemra v Stuart Dickson Produce Pty Ltd - [2024] NSWPIC 599

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nemra v Stuart Dickson Produce Pty Ltd [2024] NSWPIC 599
APPLICANT:	Mohamed Nemra
RESPONDENT:	Stuart Dickson Produce Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	25 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant was involved in accident when driving forklift on 10 June 2020; the respondent agrees he sustained an injury to his cervical spine and lumbar spine but disputes he sustained any injury to his right shoulder; Mason v Demasi & Anor and Bradshaw v McEwans Pty Ltd discussed; Held – the applicant has not discharged his onus of proof that he sustained an injury to his right shoulder on 10 June 2020; award for the respondent in relation to the allegation of right shoulder injury; the lump sum claims relating to the cervical spine and lumbar spines are remitted to the President for referral to Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to the allegation of right shoulder injury. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor as follows: a. Body systems: cervical spine, lumbar spine b. Method of assessment: whole person impairment c. Date of injury: 10 June 2020 d. Documents to be referred: Application to Resolve a Dispute, Application to Admit Late Documents dated 17 July 2024 filed by the respondent attaching the Reply excepting the report from Dr Hitchen dated 26 May 2023 is only referred as to the history obtained by the doctor.

STATEMENT OF REASONS

BACKGROUND

Mohamed Nemra, the applicant, was driving a forklift in the course of his employment with the respondent, Stuart Dickson Produce Pty Ltd, on 10 June 2020 when another forklift driver collided into him causing his vehicle to spin and collide with a stationary truck. As a result he alleges he sustained various injuries.
The Application to Resolve a Dispute (ARD) was amended to add “right shoulder” to the injury description.
In these proceedings he seeks lump sum compensation pursuant to s66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to his cervical and lumbar spine and right upper extremity.
The only issue in dispute is whether Mr Nemra sustained an injury to his right shoulder pursuant to s 4(a) of the 1987 Act on 10 June 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded before me in arbitration hearing on 7 August 2024 on the MS Teams platform. Mr Jarryd Malouf, counsel, instructed by Ms Nadene Alawie, solicitor, appeared on behalf of Mr Nemra, who was present. Mr Daniel Stiles, counsel, appeared for the respondent and was instructed initially by Ms Emma Blackburn, solicitor, and then Ms Dakota Woods and Ms Williams from the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to…

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 599
Decision Date: 25 October 2024

CaseChat Overview and Summary

In the case of Nemra v Stuart Dickson Produce Pty Ltd, the applicant sought compensation for injuries sustained in an accident while driving a forklift on 10 June 2020. The respondent conceded that the applicant suffered injuries to his cervical spine and lumbar spine but disputed the existence of any injury to his right shoulder. The dispute came before the court, which was required to determine whether the applicant had sustained an injury to his right shoulder on the specified date and to assess the compensation due for the admitted injuries.

The primary legal issue before the court was whether the applicant had successfully proven that he sustained an injury to his right shoulder during the accident on 10 June 2020. The court considered the evidence presented and applicable legal principles, including the onus of proof on the applicant to establish the injury in question. The court examined the authority of Mason v Demasi & Anor and Bradshaw v McEwans Pty Ltd, which provided guidance on the burden of proof in workers' compensation claims.

After reviewing the evidence, the court found that the applicant had not discharged the onus of proof that he sustained an injury to his right shoulder on 10 June 2020. Consequently, the court awarded the respondent in relation to the allegation of the right shoulder injury. However, the court noted that the lump sum claims concerning the cervical spine and lumbar spine injuries were not fully resolved and were remitted to the President for further assessment by a Medical Assessor to determine the permanent impairment related to these injuries.

Orders