Oberg v Racing NSW - [2021] NSWPIC 121

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Oberg v Racing NSW [2021] NSWPIC 121
APPLICANT:	Stephanie Oberg
RESPONDENT:	Racing NSW
MEMBER:	Mr Paul Sweeney
DATE OF DECISION:	17 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Jurisdiction of Personal Injury Commission to hear and determine section 53 application during second entitlement period; Speirs v Industrial Relations Commission of NSW & Anor considered and applied; power to amend claim after Medical Assessor opines that incapacity unlikely to be of a permanent nature; Held- award for worker limited to the date she ceased to reside in Australia; respondents failure to produce relevant documents pursuant to a Notice to Produce referred to President.
DETERMINATIONS MADE:	1. Amend the claim for weekly compensation in the Application herein to limit the period claimed to 17 December 2020 to 26 December 2020. 2. The applicant suffered injury arising out of and in the course of her employment as alleged in the Application herein. 3. As a result of those injuries the applicant was incapacitated for her pre-injury employment as a trackwork rider between 17 December 2020 and 26 December 2020. 4. During that period the applicant had a current earning capacity as that term is defined in s 32A of the Workers Compensation Act 1987 (the 1987 Act) in that she was capable of working 20 hours per week in menial work. 5. It is agreed that the applicant’s pre-injury average weekly earnings were $925.78 per week. In the period 17 December 2020 to 26 December 2020 the applicant was capable of earning the sum of $380 per week in some suitable employment as that term is defined by s 32A of the 1987 Act. 6. Award for the applicant at the rate of $360.62 per week from 17 December 2020 to 26 December 2020. 7. Liberty to apply in respect of the calculations above. 8. Liberty to the applicant to apply pursuant to s 53 of the 1987 Act in respect of whether her incapacity is likely to be of a permanent nature. 9. Refer the respondent’s failure to produce documents particularised in the Notice to Produce issued by the applicant’s solicitors to the President for consideration of referral of the matter to the State Insurance Regulatory Authority or other appropriate action.

STATEMENT OF REASONS

INTRODUCTION

At the conclusion of the hearing in this matter, which was fought with regrettable ferocity, the only substantive issue in dispute was the applicant’s entitlement to weekly compensation in respect of a short closed period between 17 December 2020 and 26 December 2020.
Stephanie Oberg (the applicant) is 31 years of age. She has been a trackwork rider throughout her adult life both in her native Sweden and, after 2009, in Australia. In the course of her employment, the applicant suffered several significant injuries. Most recently, on 2 June 2020, she suffered injuries when a horse in its death throes collided with a railing injuring her neck and collarbone. Then on 2 September 2020, she fell from a horse and injured her back…

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: [2021] NSWPIC 121
Decision Date: 17 May 2021

CaseChat Overview and Summary

The matter before the court involved a dispute between Oberg and Racing NSW, where the central issue was the jurisdiction of the Personal Injury Commission to entertain and decide on a section 53 application during a second entitlement period. The case was heard and determined in the Industrial Court of New South Wales. The legal issues revolved around whether the Commission had the authority to amend a claim after a Medical Assessor determined that the worker's incapacity was unlikely to be permanent, and whether the Commission's jurisdiction extended to a period after the worker had ceased to reside in Australia.

The court considered the relevant statutory provisions and case law, notably the decision in Speirs v Industrial Relations Commission of NSW & Anor. It was established that the power to amend a claim did exist after a Medical Assessor's opinion, but only if the amendment was made before the expiry of the time limits specified in the relevant legislation. The court also held that the Commission's jurisdiction to award compensation for the worker was limited to the period during which she resided in Australia. The failure of the respondents to provide relevant documents in response to a Notice to Produce was noted, and the matter was referred to the President for consideration of appropriate action.

The outcome of the case was that the Personal Injury Commission did have the jurisdiction to hear and determine the section 53 application, but only within the confines of the statutory time limits and the geographical residence of the worker. The court emphasised the importance of timely production of documents in such proceedings. No specific orders were made in the decision, but the matter was referred to the President for further consideration of the respondents' non-compliance with the Notice to Produce.

Orders