Shaukat v ACM Parts Pty Ltd - [2024] NSWPIC 622

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shaukat v ACM Parts Pty Ltd [2024] NSWPIC 622
APPLICANT:	Sharfraz Shaukat
RESPONDENT:	ACM Parts Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	6 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; accepted injuries to lumbar spine and left shoulder; whether applicant sustained cervical spine injury in same event; inconsistent recollections of the onset of symptoms; no record of cervical spine symptoms for approximately two years after the event; Held – applicant has not discharged his onus of establishing injury to the cervical spine; balance of matter remitted to President for referral to a Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent with respect to the allegation of injury to the applicant’s cervical spine. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 December 2018 Body parts: left upper extremity (shoulder) lumbar spine Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Sharfraz Shaukat (the applicant) was employed by ACM Parts Pty Ltd (the respondent) as a vehicle dismantler.
On 6 December 2018, the applicant sustained an injury in the course of his employment while dismantling a car. It has been accepted by the respondent’s insurer that the applicant sustained an injury to his left shoulder and lower back in that event. The applicant also claims that he injured his cervical spine.
On 24 November 2023, the applicant, through his solicitors, made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in reliance upon an assessment made by orthopaedic surgeon, Dr Medhat Guirguis, of 26% whole person impairment (WPI) of the applicant’s left shoulder, lumbar spine and cervical spine.
Liability for an injury to the applicant’s cervical spine and the entitlement to lump sum compensation were disputed in notices issued by the respondent’s insurer pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 March 2024 and 19 June 2024.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 20 August 20204. The applicant seeks lump sum compensation pursuant to s 66 of the 1987 Act in accordance with Dr Guirguis’ assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine on 6 December 2018 pursuant to s 4 of the 1987 Act, and
(b) the degree of permanent impairment resulting from the injury on 6 December 2018.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 10 October 2024 at the Commission’s…

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: [2024] NSWPIC 622
Decision Date: 6 November 2024

CaseChat Overview and Summary

The applicant in this case, Shaukat, was employed by ACM Parts Pty Ltd and claimed compensation for injuries sustained in the course of his employment under the Workers Compensation Act 1987. Shaukat sought a lump sum compensation pursuant to section 66, claiming injuries to his lumbar spine and left shoulder, as well as a cervical spine injury, all of which he alleged occurred during a work-related incident. The dispute centred on whether Shaukat had sustained a cervical spine injury in the same event, given the inconsistency in his recollections of the onset of symptoms and the absence of any record of cervical spine symptoms for approximately two years after the incident.

The primary legal issue before the court was whether Shaukat had successfully discharged his burden of proof regarding the cervical spine injury. The court needed to assess the credibility of Shaukat's evidence concerning the onset of his symptoms and determine if there was sufficient evidence to support a finding that the cervical spine injury occurred during the work-related incident. The court also needed to consider whether the lack of medical records documenting cervical spine symptoms for two years post-incident affected the applicant's case.

The court found that Shaukat had not met his onus of proving that the cervical spine injury occurred during the work-related incident. The inconsistent recollections of the onset of symptoms and the absence of medical records for approximately two years following the event undermined the applicant's case. Given the difficulty in establishing a causal link between the incident and the cervical spine injury, the court held that Shaukat had not discharged his burden of proof. Consequently, the matter was remitted to the President for referral to a Medical Assessor to assess permanent impairment, excluding the cervical spine injury.

Orders