Proops v MSS Security Pty Limited - [2023] NSWPIC 384

CERTIFICATE OF DETERMINATION OF MEMBER

Citation:

Proops v MSS Security Pty Limited [2023] NSWPIC 384

APPLICANT:

Aaron Proops

Respondent:

MSS Security Pty Limited

Member:

Diana Benk

DATE OF DECISION:

2 August 2023

CATCHWORDS:

WORKERS COMPENSATION - Claims for permanent impairment compensation; accepted claim for injury to upper limbs and scarring; disputed claim for consequential condition of cervical spine as a result of upper limb injuries; consideration of  Kooragang v Bates; Held – the applicant has not satisfied the onus of establishing consequential condition of his cervical spine as a result of injury to his upper limbs; remitted to President for referral to Medical Assessor in relation to upper limb injuries and scarring only.

determinations made:

The Commission determines:

1. Award for the respondent in respect of the claim for injury to the cervical spine.

2. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder) and scarring arising out of injury on 5 May 2015.

3. That the Medical Assessor is to be provided with the following;

(a) Application to Resolve a Dispute and attachments;

(b) Reply and attachments, and

STATEMENT OF REASONS

BACKGROUND

The insurer accepts Mr Proops (the applicant) sustained injury on 5 May 2015 to his left shoulder and right ankle. It subsequently accepted liability for right shoulder symptoms (consequential) but disputes liability with regards to any claimed cervical spinal symptoms either as a result of a frank injury or a consequential condition.[1]
[1]Section 78 notice dated 7 October 2022
An Application to Resolve a Dispute (ARD) was filed with the Personal Injury Commission (Commission) seeking lump sum compensation and medical expenses.

ISSUES FOR DETERMINATION

The parties agree the only issue I must determine is:
(a) whether the applicant has sustained a frank injury or consequential condition to the cervical spine as a result of the accident on 5 May 2015.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 5 July 2023. Mr Robison of counsel, instructed by Mr Greene, appeared for the applicant, who was present. Ms Goodman of counsel appeared for MSS Security Pty Limited (the respondent), instructed by Ms Israel. Ms Moore of Allianz was also present.
The ARD was amended by consent to plead frank injury to the cervical spine on 5 May 2015, in addition to the other injuries claimed in the Application.
Both counsel requested that I proceed to determine the liability issue with regards the cervical spine only. In the interests of brevity, I will confine my assessment to the evidence concerning the cervical spine.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents dated 15 and 29 June 2023 and attachments

Oral evidence

There was no…

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 Proops v MSS Security Pty Limited

Details

AGLC: Proops v MSS Security Pty Limited [2023] NSWPIC 384
Case: [2023] NSWPIC 384
Decision Date: 2 August 2023

CaseChat Overview and Summary

Proops v MSS Security Pty Limited was a case in the New South Wales Civil and Administrative Tribunal concerning a claim for workers' compensation. The applicant, Proops, sought compensation for permanent impairment, which included an accepted claim for injury to his upper limbs and scarring, as well as a disputed claim for a consequential condition of his cervical spine arising from the upper limb injuries. The respondent, MSS Security Pty Limited, disputed the claim for the consequential cervical spine condition.

The legal issues before the Tribunal were whether the applicant had established that the cervical spine condition was a direct consequence of the upper limb injuries, and if the applicant had met the burden of proof in relation to this claim. The Tribunal was required to consider the relevant principles of workers' compensation law, including the case of Kooragang Investments Pty Ltd v Richardson & Wrench Limited, which deals with the concept of consequential conditions in workers' compensation claims.

The Tribunal found that the applicant had not satisfied the onus of establishing that the cervical spine condition was a consequential condition of the upper limb injuries. The Tribunal noted that there was insufficient evidence to establish a causal link between the upper limb injuries and the cervical spine condition. Consequently, the Tribunal held that the claim for the consequential cervical spine condition was not valid. The Tribunal remitted the matter to the President for referral to a Medical Assessor in relation to the upper limb injuries and scarring only.

The Tribunal did not make any final orders in this case as it was remitted back to the President for further assessment of the upper limb injuries and scarring. The decision underscored the importance of establishing a causal link between an injury and a consequential condition in workers' compensation claims.

Orders