Uborg v Maranoa Haulage Pty Ltd - [2024] NSWPIC 176

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Uborg v Maranoa Haulage Pty Ltd [2024] NSWPIC 176
APPLICANT:	Robert Thomas Uborg
RESPONDENT:	Maranoa Haulage Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for complex regional pain syndrome (CRPS); whether medical dispute existed; whether Commission could make section 66 order without remittal to Medical Assessor; Held – the alleged dispute was an attempt by the respondent’s legal advisor to distance the respondent from the opinion of its expert witness; all medical experts in agreement that CRPS is the appropriate diagnosis; respondent misunderstood their expert’s response to a question; Etherton v ISS Property Services Pty Ltd, The Star Entertainment Group Ltd v Samaan and first instance cases cited; Table 17.1 of the Guides considered; section 319 of the Workplace Injury Management and Workers Compensation Act 1998 considered; Procedural Direction PIC 6 applied; award applicant for section 66 claim.
DETERMINATIONS MADE:	The Commission determines: 1. No relevant medical dispute has been demonstrated. 2. Accordingly, the respondent will pay to the applicant pursuant to s 66 a lump sum equivalent to 31% whole person impairment in accordance with the report of Dr Robinson dated 6 February 2023.

STATEMENT OF REASONS

BACKGROUND

Robert Thomas Uborg, the applicant, brings an action against Maranoa Haulage Pty Ltd, the respondent, for lump sum compensation in respect of his left upper extremity, chronic pain and scarring caused by injury on 27 April 2019.
Dispute notices were duly issued and the proceedings were commenced.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Does Mr Uborg have a diagnosable chronic pain condition?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was set down for hearing by video link on 1 February 2024 but due to a malfunction of counsel’s Internet, written submissions were ordered. Ms Lyn Goodman of counsel appeared for the applicant briefed by Mr Joshua Allen. Mr Greg Young of counsel appeared for the respondent briefed by Ms Jennifer Doyle and Ms Bianca Necovski.
Mr Nathan Ye appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents from the respondent, and
(c)    Application to Admit Late Documents (AALD) dated 29 January 2024 from the respondent.

Oral evidence

No application was made in regard to oral evidence.

FINDINGS AND REASONS

The facts are in short…

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: [2024] NSWPIC 176
Decision Date: 9 April 2024

CaseChat Overview and Summary

In the matter of Uborg v Maranoa Haulage Pty Ltd, the claimant sought compensation for a condition known as complex regional pain syndrome (CRPS), which arose from an injury sustained during employment. The matter was heard in the Queensland Court of Appeal. The respondent, Maranoa Haulage Pty Ltd, challenged the claimant's entitlement to compensation, arguing that there was a medical dispute regarding the diagnosis of CRPS. This case presented the court with the task of determining whether there was indeed a medical dispute and whether the Commission could make a section 66 order without a referral to a Medical Assessor.

The central legal issues before the court were whether a genuine medical dispute existed concerning the diagnosis of CRPS, and if so, whether the Commission had the authority to make a section 66 order without remittal to a Medical Assessor. The court was required to examine the evidence provided by medical experts and the responses given by the parties' respective experts. Furthermore, the court had to consider the statutory provisions and procedural directions relevant to the workers' compensation context in Queensland.

The court found that the alleged dispute was, in fact, an attempt by the respondent’s legal advisor to distance the respondent from the opinion of its expert witness. All medical experts agreed that CRPS was the appropriate diagnosis. The court also concluded that the respondent had misunderstood their expert’s response to a specific question, which led to the perceived dispute. The court referenced Etherton v ISS Property Services Pty Ltd and The Star Entertainment Group Ltd v Samaan to support its interpretation of the statutory provisions and procedural directions. In applying Table 17.1 of the Guides and section 319 of the Workplace Injury Management and Workers Compensation Act 1998, the court found that the Commission could make a section 66 order without remittal. Consequently, the court awarded the claimant for their section 66 claim.

Orders