Tulczyn v Westrac Pty Ltd - [2023] NSWPIC 533

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tulczyn v Westrac Pty Ltd [2023] NSWPIC 533
APPLICANT:	Craig Tulczyn
RESPONDENT:	Westrac Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	9 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of accepted right knee injury; whether consequential conditions at lumbar spine and left knee as a result of the right knee injury; whether proper foundation for acceptance of expert opinion; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan referred to; Held – the applicant sustained consequential conditions at lumbar spine and left knee; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition at his lumbar spine as a result of the injury on 11 September 2017. 2. The applicant sustained a consequential condition as his left knee as a result of the injury on 11 September 2017. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 11 September 2017 Body parts: Right lower extremity (knee) Left lower extremity (knee) – consequential Lumbar spine – consequential Method: Whole Person Impairment 4. 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 Craig Tulczyn (the applicant) was in the course of his employment with Westrac Pty Limited (the respondent) when he sustained an injury to his right knee on 11 September 2017. Liability for the right knee injury was accepted by the respondent’s insurer.
On 22 December 2022, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim relied on an assessment by Dr James Bodel of 29% whole person impairment (WPI) of the right lower extremity (knee), left lower extremity (knee) and lumbar spine resulting from the injury on 11 September 2017.
On 9 May 2023, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability in respect of the left knee and lumbar spine as well as the degree of permanent impairment resulting from injury.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute lodged in the Personal Injury Commission (the Commission) on 14 July 2023. The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether applicant sustained a consequential left knee condition as a result of the injury to his right knee on 11 September 2017;
(b)    whether applicant sustained a consequential lumbar spine condition as a result of the injury to his right knee on 11 September 2017, and
(c)    the degree of permanent impairment resulting from injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The…

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 533
Decision Date: 9 October 2023

CaseChat Overview and Summary

The applicant, Tulczyn, sought a lump sum compensation payment for an accepted right knee injury. Westrac Pty Ltd, the respondent, contested the claim, particularly regarding consequential conditions at the lumbar spine and left knee, which Tulczyn alleged resulted from the initial knee injury. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue revolved around whether the lumbar spine and left knee conditions were indeed consequential to the right knee injury. A secondary issue was whether the evidence presented provided a sufficient foundation for the acceptance of expert medical opinions. The court needed to determine if there was a causal link between the initial injury and the consequential conditions and if the evidence was adequate to support the expert opinions.

The tribunal examined the evidence and expert reports, noting that the issue of consequential injury was complex and required careful analysis. The court concluded that there was a sufficient foundation to accept that the lumbar spine and left knee conditions were consequential to the right knee injury. However, the evidence did not conclusively establish the causal link. Therefore, the matter was remitted to the President for referral to a Medical Assessor to further investigate and determine the causation of the consequential conditions. The decision underscored the importance of robust evidence in workers' compensation claims, particularly concerning consequential injuries.

The final orders included the remission of the matter to the President for a referral to a Medical Assessor to ascertain the causation of the lumbar spine and left knee conditions, with a view to making a final determination on the compensation claim.

Orders