Simamora v International Moulded Plastics Pty Ltd - [2023] NSWPIC 34

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Simamora v International Moulded Plastics Pty Ltd [2023] NSWPIC 34
APPLICANT:	Florence Simamora
RESPONDENT:	International Moulded Plastics Pty Limited
Member:	Philip Young
DATE OF DECISION:	27 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Accepted claim for right upper extremity injury; claim for primary or consequential neck injury or condition, consequential left upper extremity condition and consequential hypertensive condition; consideration of Kooragang Cement Pty Limited v Bates, Woolworths Limited v Stafford and Westpac Banking Corporation v Hungerford; preference of applicant’s medical opinion over opinion of Dr Wallace; Held – award in favour of the applicant in respect of right upper extremity and neck injuries and consequential left upper extremity and hypertensive conditions; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor.
determinations made:	1. By reason of the nature and conditions of the applicant’s employment with the respondent between October 2013 and 22 July 2015 the applicant suffered an aggravation injury to her pre-existing right shoulder, right elbow, both wrists and hands and neck. 2. The applicant suffered a consequential condition in respect of her left upper extremity (left shoulder) due to overuse of her left upper extremity to spare her right arm and shoulder. 3. The applicant suffered a consequential condition in the nature of hypertension as a result of the combination of injury and consequential conditions described above. 4. The applicant’s permanent impairment was fully particularised on 22 September 2021 and this date is the deemed date of injury for the purposes of s 4 (b) (ii) of the Workers Compensation Act1987 (the 1987 Act). 5. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant whole person impairment, if any, which results from injury to the applicant’s right upper extremity (right shoulder, right elbow, right wrist and hands), cervical spine, left upper extremity (left shoulder) and hypertension with deemed date of injury of 22 September 2021. 6. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments and a copy of these Reasons.

STATEMENT OF REASONS

BACKGROUND

Florence Simamora (the applicant) is a 50-year-old lady who was employed by International Moulded Plastics Pty Limited (the respondent) between October 2013 and 22 July 2015.
The applicant brings a claim pursuant to s 66 of the 1987 Act relying upon episodes of injury and consequential conditions. The applicant relies upon allegations concerning the nature and conditions of her employment between October 2013 and 22 July 2015 (the last day worked) involving repetitive use of her hands and arms allegedly aggravating pre-existing conditions in respect of her right shoulder, right elbow, both wrists and hands and her neck. In addition, she pleads a consequential condition in respect of her neck because of an examination by the respondent’s independent medical examiner, Dr Holman. Further, she claims a consequential condition…

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 34
Decision Date: 27 January 2023

CaseChat Overview and Summary

In the matter of Simamora v International Moulded Plastics Pty Ltd, the applicant, Simamora, sought compensation for injuries sustained in the course of their employment. The dispute centred on whether the applicant was entitled to compensation for a primary or consequential neck injury or condition, a consequential left upper extremity condition, and a consequential hypertensive condition, in addition to the accepted right upper extremity injury. The case was heard in the Personal Injury List of the District Court of New South Wales.

The primary legal issue before the court was whether the applicant's claims for additional injuries were substantiated. The court had to consider the evidence presented by both parties, including the opinions of medical experts, and determine whether these claims met the criteria for compensation under the relevant workers compensation legislation. The court also had to assess the credibility of the applicant's medical evidence in light of conflicting expert opinions.

The court found that the applicant's evidence was more persuasive than that of Dr Wallace, particularly in light of the authorities cited, including Kooragang Cement Pty Limited v Bates, Woolworths Limited v Stafford, and Westpac Banking Corporation v Hungerford. The court accepted the applicant's medical evidence that the neck injury and the consequential left upper extremity and hypertensive conditions were causally linked to the accepted right upper extremity injury. Accordingly, the court made an award in favour of the applicant for the additional injuries. The matter was then remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for the purpose of assessing the applicant’s entitlements under the Workers Compensation Act.

Orders