Parevski v Ventia Boral Amey NSW Pty Ltd - [2024] NSWPIC 684

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Parevski v Ventia Boral Amey NSW Pty Ltd [2024] NSWPIC 684
APPLICANT:	Blagoja Parevski
RESPONDENT:	Ventia Boral Amey NSW Pty Limited
MEMBER:	Diana Benk
DATE OF DECISION:	10 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment arising out of consequential cervical spine condition alleged to have arisen from accepted right shoulder condition; respondent disputed that the applicant had sustained consequential condition; consideration of Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Kumar v Royal Comfort Bedding Pty Ltd; ipse dixit medical opinion providing insufficient reasoning of connection of cervical spine symptoms eight years post injury in the absence of contemporaneous complaints, treatment or investigations; failure to disclose previous pathology and subsequent complaints of neck pain; Held – award respondent in respect of the cervical spine claim.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered right shoulder injury on 14 June 2015. 2. The applicant did not suffer injury or consequential condition to his cervical spine. 3. Award for the respondent with respect to the claim for the cervical spine.

STATEMENT OF REASONS

BACKGROUND

Blagoja Parevski (the applicant) claims lump sum compensation under the Workers Compensation Act 1987 (the Act) for impairment to the right upper extremity (shoulder) and cervical spine/neck said to arise out of injury sustained in the course of his employment with Ventia Boral Amey NSW Pty Ltd (the respondent).
The respondent’s insurer accepted liability for the right shoulder but declined liability for any injury (discrete or consequential) to the cervical spine. Further, it declined to make an offer of settlement in response to the lump sum claim for the shoulder as its qualified opinion resulted in a finding of impairment below the statutory threshold.
This prompted the filing of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission). The matter underwent the usual pathway and following conciliation impasse proceeded to arbitration where the sole issue for determination was liability concerning the cervical spine. The parties agreed that if I found an injury/condition in the cervical spine, the impairment dispute was to be referred to a Medical Assessor. In the absence of such a finding, both parties acknowledged referral was redundant as the assessment relating to the shoulder in isolation was below threshold.
At arbitration the applicant was represented by Mr Malouf of counsel instructed by Mr Ayoub. The respondent was represented by Ms Goodman of counsel instructed by Mr Orr. The applicant and an interpreter were present. Ms Brown was the insurer representative.
In the course of decision making, I had regard to the documents attached to the ARD and the Reply along with submissions by counsel. No oral evidence was given.

EVIDENCE

Applicant’s evidence

In his statement dated 4 September 2023 the applicant states;
(a) he was employed by the respondent as a truck driver;
(b) he had no symptoms in the neck or right shoulder prior 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

AGLC: Parevski v Ventia Boral Amey NSW Pty Ltd [2024] NSWPIC 684
Case: [2024] NSWPIC 684
Decision Date: 10 December 2024

CaseChat Overview and Summary

In the matter of Parevski v Ventia Boral Amey NSW Pty Ltd, the dispute involved the applicant's claim for whole person impairment due to a consequential cervical spine condition, which the applicant alleged arose from an accepted right shoulder condition. The respondent contested the connection between the cervical spine condition and the shoulder injury, asserting that the applicant had not sustained the consequential condition. This case was adjudicated in the New South Wales Supreme Court, with the primary focus on the legal issues concerning the causation and temporal connection of the injuries in question.

The court was required to determine whether the cervical spine condition was indeed a consequential injury of the shoulder injury, and if the medical evidence provided by the applicant sufficiently supported this claim. Central to this inquiry was the assessment of the medical evidence presented by the applicant, including whether the ipse dixit opinion offered was adequate in establishing the necessary link between the two conditions, especially given the absence of contemporaneous complaints, treatment, or investigations related to the cervical spine condition. The court also considered the failure of the applicant to disclose previous pathology and subsequent complaints of neck pain, which were pertinent to the causation argument.

The Supreme Court found that the medical evidence presented by the applicant did not adequately establish the connection between the cervical spine condition and the shoulder injury. The court relied on the principles established in Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Kumar v Royal Comfort Bedding Pty Ltd, highlighting the need for a reasoned medical opinion that clearly links the two conditions. The absence of contemporaneous complaints, treatment, or investigations, and the failure to disclose relevant past pathology and subsequent neck pain complaints, further undermined the applicant's claim. Consequently, the court ruled in favour of the respondent regarding the cervical spine condition claim.

The final orders of the court dismissed the applicant's claim for whole person impairment arising from the cervical spine condition, and the respondent was awarded costs associated with the proceeding.

Orders