Vaimalu v Workforce Recruitment and Labour Services - [2024] NSWPIC 482

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Vaimalu v Workforce Recruitment and Labour Services [2024] NSWPIC 482
APPLICANT:	Mosa Vaimalu
RESPONDENT:	Workforce Recruitment and Labour Services
MEMBER:	John Wynyard
DATE OF DECISION:	29 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; liability accepted for right elbow and wrist injuries caused on 6 December 2018; liability denied for claim for injury to the right shoulder and lumbar spine; applicant claimed latter injuries occurred on 6 December 2018 in his original statement, which was primarily concerned with an unrelated altercation at his light duties employment; applicant subsequently gave a further, more considered statement which was supported by contemporaneous evidence as to the onset of the claimed injuries during the period the applicant was doing light duties; applicant's qualified expert had written a supportive report on the basis of the applicant's incorrect history and subsequently issued a further report when provided with the applicant's later statement; this further report corrected the history and found that the disputed injuries occurred whilst the applicant was doing light duties; whether applicant had satisfied his onus of proof; Held – the applicant suffered from pathology radiologically established in the right shoulder and a significant developmental pathology at L5/S1; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 17 September 2020 (deemed). (b) Matters for assessment: right upper extremity (shoulder), and lumbar spine. (a) Date of injury: 6 December 2018. (b) Matters for assessment: right upper extremity (elbow, wrist). (c) Evidence (both referrals): Application to Resolve a Dispute and attached documents; Application to Admit Late Documents dated 26 June 2024 from the applicant; Reply and attached documents, and copy of these reasons.

STATEMENT OF REASONS

BACKGROUND

Mosa Waimalu the applicant brings an action against Workforce Recruitment and Labour Services, the respondent, for lump sum payment in relation to the right upper extremity and the lumbar spine.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer injury to his lumbar spine and right shoulder as a result of an incident of 6 December 2018?
(b) Did the applicant suffer aggravation, exacerbation, acceleration or deterioration of a disease process in his lumbar spine and right shoulder caused by the nature of his work up to 17 September 2020?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 17 July 2024. The applicant was represented by
Mr Graham Barter of counsel, instructed by Mr Khristopher Narsimullu and Mr Eric D'Cruz. Ms Nicole Compton of counsel appeared for the respondent instructed by Ms Peta Tunnicliff. Ms Danielle Moore attended the hearing by telephone from Newcastle for the insurer. Also in attendance was Ms Travilla Pukuke, as a support person for the applicant.
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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 482
Decision Date: 29 August 2024

CaseChat Overview and Summary

The case of Vaimalu v Workforce Recruitment and Labour Services involved the applicant, Vaimalu, seeking compensation for injuries sustained during his employment. The respondent, Workforce Recruitment and Labour Services, conceded liability for injuries to Vaimalu's right elbow and wrist, which occurred on 6 December 2018. However, the respondent denied liability for injuries to Vaimalu's right shoulder and lumbar spine. Vaimalu claimed these injuries also occurred on 6 December 2018, but subsequently provided a more considered statement, supported by evidence indicating that the injuries in question arose during his light duties period. The applicant's expert initially prepared a report based on the incorrect history, but later corrected the report after being provided with the updated statement.

The central legal issues revolved around whether Vaimalu had satisfied his burden of proof regarding the onset and causation of the disputed injuries. The court had to consider the credibility of Vaimalu's later statement and the expert's revised report, as well as the contemporaneous evidence supporting the timing of the injuries. The court also had to determine whether the injuries to the right shoulder and lumbar spine were work-related, given the respondent's denial of liability.

In reaching its decision, the court examined the evidence and the applicant's later statement, which was supported by contemporaneous evidence. The court accepted that Vaimalu had indeed suffered from pathology in the right shoulder and a significant developmental pathology at L5/S1. The court found that the applicant had satisfied his onus of proof and awarded compensation to Vaimalu. The court's ruling acknowledged the corrected expert report and the supporting evidence, affirming that the injuries to the right shoulder and lumbar spine were work-related.

The final orders of the court were in favour of the applicant, awarding compensation for the injuries to the right shoulder and lumbar spine. The court's decision recognised the credibility of the applicant's updated statement and the evidence provided, leading to the acceptance of liability by the respondent for these additional injuries.

Orders