Shankar v Ceva Logistics (Australia) Pty Limited

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18

APPELLANT:

Ram Shankar

RESPONDENT:

Ceva Logistics (Australia) Pty Limited

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-6336/20

MEMBER:

Mr J Harris

DATE OF MEMBER’S DECISION:

4 December 2020

DATE OF APPEAL DECISION:

16 June 2021

CATCHWORDS:

WORKERS COMPENSATION – leave to appeal an interlocutory decision – monetary threshold to appeal – assessment of permanent impairment – whether a Member can decline to refer a body part for assessment by a medical assessor

PRESIDENTIAL MEMBER:

Acting Deputy President Geoffrey Parker SC

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B McManamey, counsel

Carroll & O’Dea Lawyers

Respondent:

Mr N Maley, solicitor

Holman Webb Lawyers

ORDERS MADE ON APPEAL:

1.     Leave to appeal is granted.

2.     The Certificate of Determination dated 4 December 2020 is varied as follows:

(a)   Add to paragraph [6] against the heading “Body Parts Referred” after the words “cervical spine” the words “left upper extremity”.

INTRODUCTION

1. This is an application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and if leave is granted, to appeal a decision by an Arbitrator made on 4 December 2020, declining to refer for assessment by an Approved Medical Specialist (AMS) the appellant’s left upper extremity.

2. For the reasons that follow, leave to appeal is granted. The appeal is allowed.

BACKGROUND

1. In order to understand the ex tempore decision of the Arbitrator, it is necessary to set out in some detail the appellant’s original claim and the respondent’s response thereto.

2. The appellant, Mr Shankar, filed an Application to Resolve a Dispute (ARD) in the former Workers Compensation Commission, registered on 2 November 2020.

3. In the ARD he alleged injury against Ceva Logistics (Australia) Pty Limited (the respondent) as follows:

   (a)    22 October 2010 – cervical spine, right upper extremity – total whole person impairment [WPI] percentage 11%;

   (b)    7 January 2015 – disease injury, and

   (c)    7 July 2015 – cervical spine, left upper extremity and right extremity – WPI 17%.[1]

   [1] ARD, pp 8–9.

4. The appellant gave the following description of injury:

   “On or around 22 December 2010 the Worker was moving approximately 500 boxes containing brake discs weighing approximately 10kg each. Following this task he started feeling pain in his neck and shoulders.

   On 6 August 2013, the Worker had returned to work and was engaged in picking and packing when he was asked to cut steel bolts approximately 10mm [thick] using a bolt cutter. The bolt cutters provided were either blunt and/or not fit for purpose and as a result the worker was required to apply excessive force on a repetitive basis to complete the task. He noticed pain in his left shoulder, elbow and his neck.

   The worker ceased work on 7 January 2015 as a result of his injuries and increased symptoms.

   It is submitted that the Worker has sustained injury…