Pena v Almec Pty Ltd - [2023] NSWPIC 115

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Pena v Almec Pty Ltd [2023] NSWPIC 115
APPLICANT:	Ernesto Dela Pena
RESPONDENT:	Almec Pty Ltd
Member:	Karen Garner
DATE OF DECISION:	17 March 2023
DATE OF AMENDMENT:	20 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted head injury; whether the applicant sustained injury to his neck pursuant to sections 4(a), 9A and 4(b)(ii); Held – applicant did not sustain injury to his cervical spine arising out of his employment pursuant to section 4(a) and 9A; applicant sustained injury to his cervical spine arising out of his employment pursuant to section 4(b)(ii); matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine.
determinations made:	The Commission determines: 1. The applicant did not sustain injury to his cervical spine arising out of his employment with the respondent pursuant to s 4(a) of the Workers Compensation Act 1987 to which his employment was a substantial contributing factor pursuant to s 9A of the Workers Compensation Act 1987. 2. The applicant sustained injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. The Commission orders: 3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 21 December 2020. Body parts: cervical spine and TEMSKI/ scarring. Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments; (b) direction dated 13 December 2022, which notes amendment to the Application to Resolve a Dispute, and (c) the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ernesto Dela Pena (the applicant) is 69 years old and was employed by Almec Pty Ltd (the respondent) as a Process Worker.
The applicant alleges that, while working on 21 December 2020, he injured his head and neck when he accidentally fell whilst moving three large metal sheets (the Event). The applicant also alleges that the injury caused aggravation, acceleration, exacerbation or deterioration of an underlying disease process in his neck.
On or about 23 December 2020, the applicant initiated a workers compensation claim against the respondent by way of a Certificate of Capacity issued by Dr Izzet Ayad Meina, which certified that the applicant had no capacity for any work from 19 January 2021 to
19 February 2021 because of a “Head Injury, Right supraorbital Facial laceration” on
[1] ARD, page 42.
21 December 2020.[1]
By a claim dated 13 March 2020, [2] which was served on the respondent’s insurer under cover of an email dated 28 March 2022, [3] the applicant’s solicitor made a claim for…

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 Pena v Almec Pty Ltd

Details

AGLC: Pena v Almec Pty Ltd [2023] NSWPIC 115
Case: [2023] NSWPIC 115
Decision Date: 17 March 2023

CaseChat Overview and Summary

In the case of Pena v Almec Pty Ltd, the applicant, Pena, sought a lump sum compensation for permanent impairment under section 66 of the Workers Compensation Act 1987. Pena had already accepted a head injury in relation to his employment. The central dispute was whether Pena sustained an injury to his neck as a result of his employment, which would qualify him for compensation under the Act. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues revolved around the interpretation of sections 4(a), 9A, and 4(b)(ii) of the Workers Compensation Act 1987. The court had to determine whether Pena's neck injury arose out of and in the course of his employment. This required a careful analysis of the evidence and medical reports to establish the connection between the injury and the employment circumstances.

The tribunal found that Pena did not sustain an injury to his cervical spine that arose out of his employment as defined under section 4(a) and 9A. However, the tribunal concluded that Pena did sustain an injury to his cervical spine arising out of his employment pursuant to section 4(b)(ii). The matter was subsequently remitted to the President of the Personal Injury Commission for a referral to a Medical Assessor to assess the permanent impairment related to Pena's cervical spine.

No final orders are mentioned in the text.

Orders