| CERTIFICATE OF DETERMINATION OF MEMBER | ||
Citation: | Proops v MSS Security Pty Limited [2023] NSWPIC 384 | |
| APPLICANT: | Aaron Proops | |
| 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 (c) Applications to Admit Late Documents dated 15 June 2023 and 29 June 2023 and attachments. | |
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…
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- AGLC
- Proops v MSS Security Pty Limited [2023] NSWPIC 384
- Case
- [2023] NSWPIC 384
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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