Vae v Blue Star Painting - [2023] NSWPIC 103

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Vae v Blue Star Painting [2023] NSWPIC 103
APPLICANT:	Zu Wan Vae
RESPONDENT:	Blue Star Painting
Member:	Cameron Burge
DATE OF DECISION:	14 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; injuries to right elbow and left shoulder admitted; injury to left elbow in dispute; Held – the applicant has the onus of proving he suffered injury as alleged; in this matter, despite being taken to hospital following the injury at issue, there is no record of any complaint of left elbow symptoms or injury to either the hospital, the applicant’s general practitioner or any treating medical expert; the only evidence of left elbow injury is the applicant’s statement and the report of his Independent Medical Examiner (IME) Dr Bodel; the respondent’s IME Dr Muratore took an unchallenged history from the applicant that he did not suffer left elbow symptoms form the fall at issue, and instead attributed his problems to that body system to the ageing process; notwithstanding the usual caution to be taken regarding histories to treating practitioners, the preponderance of the medical evidence in this matter does not support a finding of injury to the left elbow; award for the respondent on the claim for left elbow injury; balance of the matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to determine the applicant’s permanent impairment to the left shoulder and right elbow.
determinations made:	1. The applicant suffered an injury to his right upper extremity (elbow) and left upper extremity (shoulder) in the course of his employment with the respondent on 6 October 2019. 2. Award for the respondent on the claim for injury to the left upper extremity (elbow). 3. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment in relation to the following: Date of injury: 16 October 2019. Body systems referred: right upper extremity (elbow) and left upper extremity (shoulder). Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments, including the Medical Assessment Certificate of Dr Mastroianni dated 15 June 2022 in relation to a previous injury suffered on 16 March 2018.

STATEMENT OF REASONS

BACKGROUND

On 6 October 2019, Mr Zu Wan Vae (the applicant) was working as a painter with Blue Star Painting (the respondent) when he fell down a set of stairs at a karaoke bar in Strathfield while attending a work Christmas party.
There is no issue the applicant suffered injury to his right upper extremity (elbow) and left upper extremity (shoulder) in the above fall. Those body systems will be referred for assessment by a Medical Assessor to assess the degree of the applicant’s permanent impairment.
The applicant also alleges he suffered…

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.

Keep reading for free

Create a free CaseChat account to read Vae v Blue Star Painting and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPIC 103
Decision Date: 14 March 2023

CaseChat Overview and Summary

The parties involved in the case of Vae v Blue Star Painting were the applicant, Vae, and the respondent, Blue Star Painting. The dispute centred around claims for permanent impairment compensation following injuries to Vae's right elbow and left shoulder, with an additional claim concerning an injury to his left elbow which was contested by the respondent. The matter was heard and determined by the Personal Injury Commission of the Queensland Civil and Administrative Tribunal.

The primary legal issues the court needed to decide were whether Vae had suffered an injury to his left elbow as alleged, and if so, whether the injury was work-related and what the extent of his permanent impairment was regarding both shoulders and the right elbow. The court was required to weigh the credibility and reliability of the evidence provided by both parties, including the statements of Vae, his medical experts, and the respondent's medical expert.

In reaching its decision, the court noted that Vae had been taken to hospital following the incident in question but there was no record of any complaint of left elbow symptoms or injury from the hospital, Vae's general practitioner, or any treating medical expert. The only evidence of a left elbow injury was Vae's statement and the report of his Independent Medical Examiner (IME), Dr Bodel. Conversely, the respondent's IME, Dr Muratore, obtained an unchallenged history from Vae that he did not suffer left elbow symptoms from the fall and attributed his problems to the ageing process. Despite the usual caution exercised regarding histories taken by treating practitioners, the court found that the preponderance of the medical evidence did not support a finding of injury to the left elbow. Consequently, the court dismissed Vae's claim for the left elbow injury. The court ordered the balance of the matter to be remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to determine Vae's permanent impairment to the left shoulder and right elbow.

Orders