Ogbonna v Shedvic Australia Pty Ltd - [2023] NSWPIC 553

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ogbonna v Shedvic Australia Pty Ltd [2023] NSWPIC 553
APPLICANT:	Christian Ogbonna
RESPONDENT:	Shedvic Australia Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether 11% whole person impairment lump sum claim can be referred to Medical Assessor (MA); no dispute regarding injury or body parts; respondent disputed section 323 calculation of applicant’s doctor, said it was incorrect and result is true calculation of 10%; no medical dispute and no referral can be made; Woolworths Ltd v Stafford and Shankar v Ceba Logistics (Australia) Pty Ltd considered; Held – there was a medical dispute; matter referred to MA.
DETERMINATIONS MADE:	The Commission determines: 1. There is a medical dispute within the meaning of s 319(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 2. By consent, Application amended as follows: a. Date of injury 19 March 2021, b. Under “Permanent Impairment”, additionally claim thoracic spine. 3. Matter remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Actfor assessment as follows: a. Date of injury: 19 March 2021 – personal injury b. Body systems / parts: i. cervical spine ii. thoracic spine. 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, and b. Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (Application), Mr Christian Ogbanna (the applicant) claimed lump sum compensation in respect of 11% whole person impairment of the cervical spine as a result of injury on 19 March 2021 in the course of his employment with Shedvic Australia Pty Ltd (the respondent).
In its Reply, the respondent asserted that “the worker’s lump sum claim is not valid as the IME relied upon of Dr Charles New equates to 10% WPI, below the s66 (1) threshold”. Injury was not disputed.
Attached to the Application were the reports of Dr New dated 20 January 2022 and 20 June 2023. In the earlier report, Dr New assessed the applicant as having 11% whole person impairment in respect of the thoracic spine, cervical spine and “impact of ADL". The assessments in respect of the thoracic spine and cervical spine were reduced by one-tenth for pre-existing injury pursuant to s 323, well the assessment in respect of Activities of Daily Living (ADL) was not so reduced. In the latter report, Dr New was provided with the respondent’s objection to this approach in respect of s 323. He maintained his opinion and position in respect of the calculation and application of the s 323 deduction.
Attached to the Reply was the report of Dr Smith dated 2 August 2022. He was of the opinion that the applicant would have recovered from the injury of 19 March 2021 after three months at most following the…

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 Ogbonna v Shedvic Australia Pty Ltd

Details

AGLC: Ogbonna v Shedvic Australia Pty Ltd [2023] NSWPIC 553
Case: [2023] NSWPIC 553
Decision Date: 20 October 2023

CaseChat Overview and Summary

In Ogbonna v Shedvic Australia Pty Ltd, the applicant, Mr Ogbonna, sought to claim a lump sum for a 11% whole person impairment under the Workplace Injury Management and Workers Compensation Act 1998. The respondent, Shedvic Australia Pty Ltd, contested the claim, arguing that the applicant’s doctor’s calculation was incorrect and the true calculation resulted in a 10% whole person impairment. The dispute was referred to the Magistrates Court of Victoria for resolution.

The primary legal issue before the court was whether the case could be referred to a Medical Assessor under section 323 of the Act. The court needed to determine whether a medical dispute existed concerning the calculation of the whole person impairment. The respondent argued that there was no medical dispute, as it was a straightforward calculation error, and thus, the matter should not be referred to a Medical Assessor. The applicant, on the other hand, contended that the matter should be referred, as the difference in calculation represented a genuine medical dispute.

The court considered the cases of Woolworths Ltd v Stafford and Shankar v Ceba Logistics (Australia) Pty Ltd in reaching its decision. The court found that, although there was no dispute regarding the injury or the body parts involved, the differing calculations by the two doctors constituted a medical dispute. Consequently, the matter was referred to a Medical Assessor for further examination. The court held that the referral was appropriate as there was a genuine medical dispute concerning the whole person impairment calculation.

No final orders were made in the judgment provided. The court referred the matter to a Medical Assessor for further examination and determination of the correct whole person impairment calculation.

Orders