Ronaldson v Express Wholesalers Pty Ltd - [2023] NSWPIC 230

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ronaldson v Express Wholesalers Pty Ltd [2023] NSWPIC 230
APPLICANT:	Robert Ronaldson
RESPONDENT:	Express Wholesalers Pty Limited
Member:	Rachel Homan
DATE OF DECISION:	19 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted lumbar injury in January 2019; in April 2021 applicant injured his left forearm while using an angle grinder; whether condition at left forearm resulted from the lumbar injury; lack of contemporaneous evidence of back spasm causing the angle grinder injury; inconsistencies in the histories subsequently recorded as to how the incident occurred; lack of medical explanation of why any back spasm whilst using the angle grinder was causally related to the work injury two years earlier; Held – applicant failed to discharge evidentiary onus; consent order made for payment of lump sum compensation in respect of permanent impairment at the lumbar spine only.
determinations made:	The Commission determines: 1. The applicant has failed to discharge his onus of establishing that a consequential condition at the left upper extremity resulted from the injury to his lumbar spine on 14 January 2019. By consent, the Commission orders: 2. The respondent to pay the applicant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 in the amount of $51,103.50 for 19% whole person impairment (WPI) of the lumbar spine as result of injury on 14 January 2019 (inclusive of 5% uplift).

STATEMENT OF REASONS

BACKGROUND

Mr Robert Ronaldson (the applicant) was employed by Express Wholesalers Pty Limited (the respondent) when he injured his lumbar spine in the course of employment on
14 January 2019.
Liability for the injury to the applicant’s lumbar spine was accepted by the respondent’s insurer and the applicant continues to be paid compensation in respect of that injury.
On 28 April 2021, the applicant sustained an injury requiring surgical repair to his left forearm while using an angle grinder at home. The applicant claims that the injury to his left forearm occurred as a result of a bout of back pain.
On 1 May 2022, the applicant’s solicitors forwarded to the insurer a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim relied upon an assessment made by Dr John Bentivoglio of permanent impairment at both the lumbar spine and left upper extremity resulting from the injury on 14 January 2019.
In a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 August 2022, the insurer disputed liability for the alleged consequential condition at the left forearm. An offer was made to resolve the claim for lump sum compensation based on an assessment of 19% whole person impairment (WPI) at the lumbar spine made by the respondent’s Independent Medical Examiner, Dr Neville Rowden.
The applicant commenced the present proceedings in the Personal Injury Commission (the Commission) by lodgement of an…

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 230
Decision Date: 19 May 2023

CaseChat Overview and Summary

Ronaldson brought an action against Express Wholesalers Pty Ltd, seeking lump sum compensation for a permanent impairment resulting from a lumbar injury sustained in January 2019. The applicant further claimed that a subsequent injury to his left forearm in April 2021 was caused by a back spasm due to the original lumbar injury. Express Wholesalers disputed the connection between the forearm injury and the lumbar injury, arguing that there was insufficient evidence to support such a causal link. The matter was heard in the Workers Compensation Court.

The central legal issue before the court was whether the applicant could establish, on the balance of probabilities, that the forearm injury was caused by a back spasm resulting from the lumbar injury. The court had to consider the lack of contemporaneous evidence of a back spasm at the time of the forearm injury and the inconsistencies in the subsequent accounts provided by the applicant regarding the incident. Additionally, the court had to assess whether there was a medical explanation linking the forearm injury to the earlier lumbar injury.

The court found that the applicant had failed to discharge the evidentiary burden required to establish a causal connection between the two injuries. The lack of contemporaneous evidence and the inconsistencies in the applicant's accounts undermined his claim. Furthermore, there was no medical evidence to support the assertion that a back spasm, two years after the initial injury, could have caused the forearm injury. Consequently, the court held that the applicant's claim for compensation in respect of the forearm injury was not substantiated.

The court made a consent order for the payment of lump sum compensation to the applicant for permanent impairment at the lumbar spine only. The order reflected the court's determination that the applicant had successfully established the causal link between the lumbar injury and the resulting impairment, but not for the subsequent forearm injury.

Orders