Pollard v Toll Helicopters NSW - [2024] NSWPIC 530

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530
APPLICANT:	Christopher Pollard
RESPONDENT:	Toll Holdings Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	24 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; applicant sustained laryngeal impairment; claim for section 66 compensation based on nervous system and larynx function referred to two medical assessors; Medical Assessor (MA) Burns assessed nervous system and found that breathing dysfunction was due to larynx injury which should be assessed by MA Williams; MA Williams assessed larynx dysfunction but did not assess breathing defect; appeal filed only against assessment made by MA Burns; Appeal Panel dismissed the appeal finding that error was that MA Williams did not undertake the assessment; applicant filed further application pursuant to section 329(1)(a) alleging error by MA Williams and seeking reconsideration of his assessment as an alternative to an appeal; discussion of the nature of this application as an alternative to an appeal; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission discussed and applied; ground of appeal made out as medical dispute not fully assessed; explanation of delay accepted as special circumstances exist; Robertson v Registrar of the Workers Compensation Commission referred and applied; discussion of one appeal and concept of medical assessment; Sleiman v Gadalla Pty Ltd discussed; context of legislation and reliance on section 322A that worker entitled to only one medical assessment; clause 1.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021) and multiple medical assessors; Held – finding that process is one medical assessment; finding that applicant has exercised his one appeal against the medical assessment; claim for further assessment dismissed.
DETERMINATIONS MADE:	The Commission determines: Order 1. The application pursuant to s 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is dismissed.

STATEMENT OF REASONS

BACKGROUND

Mr Christopher Pollard (the applicant) was employed by Toll Holdings Pty Ltd (the respondent) and sustained injury on 18 October 2018. The applicant was involved in helicopter underwater escape training when one of the participants panicked and accidentally kicked him in the throat.
The applicant brought proceedings seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The application was set down before a Personal Injury Commission (Commission) Member who issued consent orders dated 1 November 2023. The orders relevantly provided:
“The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a)Date of Injury: 18 October 2023
(b)Body system: nervous system (sleep and arousal disorder), respiratory disorder and ear, nose and throat related functions (larynx dysfunction).”
The orders otherwise specified the material to be forwarded as part of the assessment.
The assessment of permanent impairment is undertaken in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (the Guidelines).[1] The Guidelines adopt the 5^th edition of 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.

Keep reading for free

Create a free CaseChat account to read Pollard v Toll Helicopters NSW and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPIC 530
Decision Date: 24 September 2024

CaseChat Overview and Summary

In the case of Pollard v Toll Helicopters NSW, the applicant, Pollard, sought compensation for a laryngeal impairment sustained in a workplace incident. Pollard's claim for section 66 compensation was evaluated by two medical assessors, Burns and Williams, focusing on the nervous system and larynx function respectively. The dispute arose from the manner in which the medical assessments were conducted and the subsequent appeal process.

The court was tasked with determining whether the applicant's claim for reconsideration of the medical assessment by MA Williams was valid under the Workers Compensation Act 1998. Specifically, the court needed to address whether the application for reconsideration constituted an alternative to an appeal and whether the delay in filing the application could be excused under special circumstances.

The court found that the application for reconsideration was indeed an alternative to an appeal, as it was not a second appeal against the same medical assessment. The court referred to Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission, which supported the notion that a worker is entitled to one medical assessment. Additionally, the court accepted that the delay in filing the application was due to special circumstances, as per Robertson v Registrar of the Workers Compensation Commission. The reasoning was grounded in the legislative intent to provide a single medical assessment and the guidelines outlined in clause 1.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.

Ultimately, the court held that the applicant had already exercised his right to appeal against the medical assessment and thus, the claim for further assessment was dismissed. This decision was made in light of the statutory entitlement to one medical assessment and the procedural constraints outlined in the relevant legislation.

Orders