Russo v Work Zone Pty Ltd - [2021] NSWPIC 355

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Russo v Work Zone Pty Ltd [2021] NSWPIC 355
APPLICANT:	Saverio Russo
RESPONDENT:	Work Zone Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	16 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Worker seeks recission of orders in a medical Certificate of Determination (COD) on the basis of the reconsideration power in the former section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1988 Act); purpose of recission is to permit a second appeal to a Medical Appeal Panel (MAP) based on deterioration of his condition resulting in an increase in WPI (section 327(3)(a) of the 1998 Act); increased WPI attributable to consequential medical condition in contralateral upper extremity which developed after the issue of the COD; O’Callaghan v Energy World Corporation considered and applied; Held - as right upper extremity was not part of the medical dispute between the parties deterioration of the condition of that limb could not be the subject of an appeal; application for reconsideration dismissed on the ground of futility.
DETERMINATIONS MADE:	1. Decline to reconsider the Certificate of Determination of 8 September 2017 and dismiss the Application.

STATEMENT OF REASONS

INTRODUCTION

Saverio Russo (the applicant) suffered injury to his dominant left hand in the course of his employment as a carpenter with Work Zone Pty Ltd (the respondent) on 23 March 2015. The respondent accepted liability for the injury in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act).
In 2017, the applicant made a claim for permanent impairment compensation in respect of his left upper extremity pursuant to s 66 of the 1987 Act. The claim was based on the opinion of Dr Lai, a plastic and reconstructive surgeon, who assessed 18% whole person impairment (WPI). As the respondent disputed the quantum the claim, he commenced proceedings in the former Workers Compensation Commission.
As the issue between the parties was a “medical dispute” as that term is defined by s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), it was referred to a Medical Assessor (MA, formerly an Approved Medical Specialist) to determine the quantum of WPI resulting from the injury.
On 10 May 2017, the MA, Dr Paul Curtin, issued a Medical Assessment Certificate (MAC) by which he certified that the applicant suffered 11% WPI of the left upper extremity (hand and wrist). On 4 August 2017, a Medical Appeal Panel (MAP) confirmed the determination of the MA.
On 8 September 2017, an arbitrator of the former Commission issued a Certificate of Determination (COD) by which the respondent was ordered to pay the applicant the sum of $15,400 in respect of 11% permanent impairment resulting from injury on 23 November 2015.
It is the applicant’s case that there has been a deterioration of his condition that results in an increase in the degree of permanent impairment. There are two aspects of the deterioration. First, the condition of the applicant’s left upper extremity (hand and wrist…

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 Russo v Work Zone Pty Ltd

Details

AGLC: Russo v Work Zone Pty Ltd [2021] NSWPIC 355
Case: [2021] NSWPIC 355
Decision Date: 16 September 2021

CaseChat Overview and Summary

The plaintiff, Russo, brought a case against Work Zone Pty Ltd concerning the recission of orders in a medical Certificate of Determination (COD) under the former section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. The plaintiff aimed to permit a second appeal to a Medical Appeal Panel (MAP) due to a deterioration of his condition, which resulted in an increased WPI (Workplace Productivity Index). The case was heard in the relevant court, which ultimately considered whether the plaintiff's application for reconsideration could proceed.

The primary legal issue before the court was whether the plaintiff's application for reconsideration was valid, given the deterioration of his condition and the development of a consequential medical condition in his contralateral upper extremity, which occurred after the issuance of the COD. The court needed to determine if the deterioration of the plaintiff's right upper extremity could be the subject of an appeal, as it was not part of the original medical dispute between the parties. This issue was informed by the principles established in O'Callaghan v Energy World Corporation.

The court found that the plaintiff's right upper extremity was not part of the medical dispute between the parties. Therefore, the deterioration of this limb could not be the subject of an appeal. The court applied the principles from O'Callaghan v Energy World Corporation and concluded that the plaintiff's application for reconsideration was futile. Consequently, the application for reconsideration was dismissed on the grounds of futility.

The court did not make any further orders in relation to this case. The dismissal of the application for reconsideration effectively concluded the plaintiff's attempt to seek a second appeal to a Medical Appeal Panel based on the deterioration of his condition.

Orders