Stevens v Shoalhaven Starches Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Stevens v Shoalhaven Starches Pty Ltd [2024] NSWPIC 496 

APPLICANT:

Mathew Stevens

RESPONDENT:

Shoalhaven Starches Pty Ltd

MEMBER:

John Turner

DATE OF DECISION:

6 September 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; section 66; claim made by the applicant for compensation for whole person impairment (WPI); applicant claimed compensation for 11% WPI for impairment of the left upper extremity (elbow) and scarring; applicant relied on a medical assessment being the only assessment of WPI; whether there was error in calculating 11% WPI; Welsh v Dandan Management Services Pty Ltd, Woolworths Ltd v Stafford, Bell v The Mining Pty Ltd, Abou-Haidar v Consolidated Wire Pty Ltd, Sukkar v Adonis Electrics Pty Ltd, Skates v Hills Industries Ltd, Yates v Flavorjen Pty Ltd, and Secretary, New South Wales Department of Education v Connolly considered and applied; Held – matter remitted to the President for referral to a Medical Assessor for assessment of left upper extremity and scarring.

DETERMINATIONS MADE:

The Commission determines:

1. That the applicant has made a valid claim for 11% WPI and that there is a “medical dispute” within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 which is capable of referral to a Medical Assessor.

2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

Date of injury: 27 March 2023 - Personal Injury.

Body systems/parts: left upper extremity (elbow), and TEMSKI/scarring.

Method of Assessment: whole person impairment.

3.     The documents to be reviewed by the Medical Assessor are:

(a)    Application to Resolve a Dispute and attached documents, and

(b)    Reply and attached documents. 

STATEMENT OF REASONS

BACKGROUND

1. Mr Mathew Stevens, the applicant, was employed by Shoalhaven Starches Pty Limited, the respondent.

2. The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his left arm whilst in the course of his employment with the respondent on 27 March 2023 when he tripped and struck his arm against a machine.

3. The applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for 11% whole person impairment (WPI) for impairment of his left upper extremity and TEMSKI/scarring.

4. The applicant underwent surgery at the hands of Dr Jarman, orthopaedic surgeon, on
   3 April 2023.

5. In support of his claim for permanent impairment compensation the applicant relies on a report of Dr Geoffrey Rosenberg, orthopaedic surgeon, dated 18 March 2024 who assessed 11% WPI. The said assessment of impairment by Dr Rosenberg is the only assessment of impairment in evidence.

6. The respondent does not dispute that the applicant sustained the alleged injury. The respondent undercover of correspondence from its solicitors, Gair Legal, dated 8 May 2024 disputes the claim for impairment compensation on the basis that Dr Rosenberg has incorrectly…