Smart v Morrison - [2022] NSWPIC 477

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Smart v Morrison & others [2022] NSWPIC 477
APPLICANT:	Alan Lawrence Smart
RESPONDENT:	David George Morrison
SECOND RESPONDENT:	C.T. Morrison & J.A. Morrison & T.C. Morrison t/as TC Morrison Partnership
senior Member:	Kerry Haddock
DATE OF DECISION:	30 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment; claim against second respondent discontinued; accepted claim against first respondent for injury to right upper extremity (right shoulder); disputed claim for consequential condition of left upper extremity (left shoulder) as result of overuse due to favouring injured right shoulder; both parties relied on evidence of independent medical examiners; lack of contemporaneous evidence of complaints in respect of left shoulder; consideration of Wiki v Atlantis Relocations (NSW) Pty Limited, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang v Bates, Tudor Capital Australia Pty Limited v Christensen and Nguyen v Cosmopolitan Homes; Held — the applicant has not satisfied the onus of establishing consequential condition of the left upper extremity as a result of injury to the right upper extremity; award for the first respondent with respect to the claim for consequential condition of the left upper extremity; claim for impairment as a result of injury to the right upper extremity remitted to President for referral to Medical Assessor.
determinations made:	The Commission determines: 1. That the claim against the second respondent is discontinued. 2. That the requirement to file an Election to Discontinue Proceedings against the second respondent is dispensed with. 3. That there is an award for the first respondent for the claim for consequential condition of the left upper extremity (left shoulder). 4. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the right upper extremity (right shoulder) on 19 August 2015. 5. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Alan Lawrence Smart (Mr Smart), was employed by the first respondent, David George Morrison, as a farm labourer. He also worked as a shearer in shearing season.
As the applicant has discontinued his claim against the second respondent, I will refer thereafter in these reasons to “the respondent”, while meaning the first respondent.
Mr Smart sustained an accepted injury to his right shoulder on 19 August 2015. He also claims to have sustained a consequential condition of his left shoulder as a result of that injury.
The applicant completed a Permanent Impairment Claim Form (the claim form) on 14 December 2021. He claimed to have 22% whole person impairment (WPI) as a result of injury to his left upper extremity and right upper extremity, with date of injury 19 August 2015. The claim form was served on the same day by Mr Smart’s solicitors.
On 7 April 2022, the respondent’s workers compensation insurer, GIO, issued the applicant with a notice pursuant to s 78 of…

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 Smart v Morrison

Details

AGLC: Smart v Morrison [2022] NSWPIC 477
Case: [2022] NSWPIC 477
Decision Date: 30 August 2022

CaseChat Overview and Summary

In the matter of Smart v Morrison, the applicant, Smart, sought compensation for a permanent impairment arising from an injury sustained at work. The respondents were Morrison and another entity, against whom the claim was later discontinued. The dispute centred on whether Smart's injury to his right shoulder led to a consequential condition in his left shoulder, which he claimed resulted from overuse due to favouring the injured right shoulder. Both parties presented evidence from independent medical examiners, but Smart did not provide sufficient contemporaneous evidence of complaints regarding his left shoulder.

The primary legal issue was whether Smart had successfully established a causal link between his work-related injury to his right shoulder and the condition of his left shoulder. The court had to consider relevant case law, including Wiki v Atlantis Relocations (NSW) Pty Limited, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang v Bates, Tudor Capital Australia Pty Limited v Christensen, and Nguyen v Cosmopolitan Homes, to determine the onus of proof and the sufficiency of the evidence presented. The court found that Smart had not discharged the onus of proving the consequential condition in his left shoulder, as there was a lack of contemporaneous evidence to support his claims.

Consequently, the court dismissed Smart's claim for compensation regarding the left shoulder and awarded costs to the first respondent, Morrison, in relation to that claim. However, the court accepted Smart's claim for impairment resulting from the injury to his right shoulder and remitted the matter to the President for referral to a Medical Assessor to determine the appropriate award. The court's decision highlighted the importance of contemporaneous evidence in establishing a causal link between work-related injuries and consequential conditions.

Orders