Ralevski v Hanson Construction Materials Pty Limited - [2023] NSWPIC 71

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ralevski v Hanson Construction Materials Pty Limited [2023] NSWPIC 71
APPLICANT:	Vasko Ralevski
RESPONDENT:	Hanson Construction Materials Pty Limited
Member:	Rachel Homan
DATE OF DECISION:	24 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted shoulder injury; whether consequential cervical spine condition; shoulder injury required multiple surgeries; wearing of a sling following surgeries; applicant says weight of immobilised limb rested on his neck and caused awkward neck positioning; degenerative pathology at the cervical spine; failure to explain causal relationship by applicant’s expert; consideration of the totality of the evidence; Held – applicant sustained a consequential condition at the cervical spine; matter remitted for referral to a Medical Assessor to assess the degree of permanent impairment.
determinations made:	1. The applicant sustained a consequential condition at his cervical spine as a result of the injury on 16 October 2019. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 16 October 2019. Body parts:left upper extremity (shoulder) – personal injury; scarring (TEMSKI) – consequential condition, and cervical spine – consequential condition. Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. documents attached to Application to Admit Late Documents lodged by the respondent on 20 December 2022.

STATEMENT OF REASONS

BACKGROUND

Mr Vasko Ralevski (the applicant) was employed by Hanson Construction Materials Pty Limited (the respondent) as a concrete truck driver.
On 16 October 2019, the applicant tripped over a water hose at the respondent’s depot. Liability for an injury to the applicant’s left shoulder in that event was accepted by the respondent’s insurer.
On 20 April 2022, the applicant’s solicitors forwarded a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), in reliance on an assessment of whole person impairment (WPI) made by Dr Eugene Gehr, dated
13 April 2022. Dr Gehr made an assessment of 22% WPI of the left shoulder, skin (scarring) and cervical spine resulting from the injury on 16 October 2019.
On 23 June 2022, the respondent declined liability for an injury to the applicant’s cervical spine, and in the alternative, a consequential condition at the cervical spine, in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The present proceedings were commenced by the applicant by an Application to Resolve a Dispute (ARD), lodged in the Personal Injury Commission (Commission) on
7 November 2022. The applicant seeks lump sum compensation in accordance with
Dr Gehr’s assessment.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing in Sydney on
30 January 2023. The applicant was represented by Ms Eraine Grotte of counsel, instructed by Ms Allanah Giuttari. The respondent was represented by Mr Allen Parker of counsel, instructed…

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

Case: [2023] NSWPIC 71
Decision Date: 24 February 2023

CaseChat Overview and Summary

In the case of Ralevski v Hanson Construction Materials Pty Limited, the applicant, Mr Ralevski, sought compensation for a shoulder injury and a consequential cervical spine condition that he claimed arose from the initial shoulder injury. The matter was heard in the New South Wales Dust Diseases Tribunal, a specialist tribunal under the Workers Compensation Act. Mr Ralevski alleged that after sustaining a shoulder injury requiring multiple surgeries and wearing a sling, the weight of the immobilised limb caused his neck to adopt an awkward position, leading to a degenerative pathology in his cervical spine. The primary legal issues before the Tribunal were whether Mr Ralevski had sustained a consequential cervical spine condition and, if so, the extent of the permanent impairment attributable to that condition.

The Tribunal considered the medical evidence presented by both parties, including the expert evidence regarding the causal relationship between the shoulder injury and the cervical spine condition. Mr Ralevski's expert did not sufficiently explain the causal link, and the Tribunal noted that the totality of the evidence supported the view that a consequential condition did exist. The Tribunal held that Mr Ralevski had sustained a consequential cervical spine condition but found that the degree of permanent impairment attributable to this condition had not been adequately assessed. Consequently, the matter was remitted for referral to a Medical Assessor to evaluate the extent of the permanent impairment.

The Tribunal ordered that the matter be remitted for a Medical Assessor to determine the degree of permanent impairment caused by the cervical spine condition. This assessment would inform any further claims for compensation related to the consequential injury. The Tribunal's decision underscores the importance of clear and comprehensive expert evidence in establishing the causal link between an initial injury and any consequential conditions in workers compensation claims.

Orders