Tisdell v M M Latimore Pty Ltd - [2022] NSWPIC 172

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Tisdell v M M Latimore Pty Ltd [2022] NSWPIC 172
APPLICANT:	Troy Andrew Tisdell
RESPONDENT:	M M Latimore Pty Ltd
PRESIDENT’S DELEGATE:	Kathryn Camp
DATE OF DECISION:	19 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Work capacity dispute; whether the applicant has “no current work capacity”; clause 9 of Schedule 3 of the Workers Compensation Act 1987 (1987 Act); whether the applicant is able to work in “suitable employment”; s 32A of the 1987 Act; whether the applicant has “no current work capacity and likely to continue indefinitely to have no current work capacity”; section 38(2) of the 1987 Act; absence of medical evidence in support; Held – the applicant failed to demonstrate that he has no current work capacity; evidence demonstrated that the applicant is able to work in suitable employment; applicant’s claim for compensation declined.
DETERMINATIONS MADE:	1. The application for an interim payment direction is declined.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a dispute relating to a Work Capacity Decision which determined that the worker’s entitlement to weekly payments of compensation would cease for reason that he is able to undertake “suitable employment” within the meaning of that phrase under s 32A of the Workers Compensation Act 1987 (the 1987 Act). It also concerns the application of s 38(2) of the 1987 Act and whether the applicant has “no current work capacity and likely to continue indefinitely to have no current work capacity”. For the reasons discussed below, the worker’s claim for compensation is unsuccessful.

BACKGROUND

The applicant worker, Troy Andrew Tisdell, sustained an accepted injury to his right leg in the course of his employment with the respondent, M M Latimore Pty Ltd, as a crane operator.
The respondent accepted the applicant’s injury and made payments of compensation, including weekly payments of compensation.
On 13 October 2021, the respondent’s insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant that his weekly payments would cease on 24 January 2022. The reason for this decision was based on a finding that the applicant was able to return to suitable employment 30 hours per week as an accounts clerk. This decision constituted a work capacity decision.
On 19 January 2022, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision is in dispute.
On 21 January 2022, the respondent lodged a Reply to the Application.
On 17 February 2022, the applicant lodged an Application to Admit Late Documents (AALD).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his solicitor Mr Grant Avery of Stacks Law Firm. The respondent was represented by its solicitor Mr Nathan Buyers of Turks Legal.
During the telephone conference I made an interlocutory decision that the AALD would be admitted into the proceedings. The reasons for that decision were provided orally…

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: [2022] NSWPIC 172
Decision Date: 19 April 2022

CaseChat Overview and Summary

In the case of Tisdell v M M Latimore Pty Ltd, the applicant sought to establish that he had no current work capacity due to an injury sustained during his employment, aiming to secure compensation under the Workers Compensation Act 1987 (1987 Act). The dispute centred on the interpretation and application of clause 9 of Schedule 3 of the Act, which pertains to the determination of an individual's work capacity, and section 32A, which deals with the cessation of compensation payments when an individual has no current work capacity and is likely to continue to have no current work capacity indefinitely. The applicant's claim was contested by the respondent, who argued that the applicant retained the capacity to undertake suitable employment.

The court was tasked with determining whether the applicant genuinely lacked any current work capacity and if such a lack was likely to persist indefinitely. Additionally, the court had to ascertain if the applicant was able to engage in suitable employment as defined under the Act. The court's analysis required a thorough review of the evidence presented, particularly the absence of medical evidence to substantiate the applicant's claims. The court examined the applicant's ability to perform work and the nature of any restrictions on his capacity to undertake suitable employment.

The court concluded that the applicant had not successfully demonstrated that he had no current work capacity. The evidence suggested that the applicant was capable of working in suitable employment. Consequently, the court found that the applicant's claim for compensation was not substantiated. The court ruled that the applicant's work capacity was not entirely absent and that there was no indication that this situation would persist indefinitely. As a result, the applicant's claim for compensation was declined.

Orders