Velovski v Bayside Council - [2021] NSWPIC 276

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Velovski v Bayside Council [2021] NSWPIC 276
APPLICANT:	Peter Velovski
RESPONDENT:	Bayside Council
PRESIDENT’S DELEGATE:	Kathryn Camp
DATE OF DECISION:	4 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation and past medical expenses as a result of a recurrence of an accepted white tail spider bite injury and its sequelae; consideration of when weekly entitlement periods commence; Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 applied; Held- applicant experienced a re-emergence of symptoms in his left leg as a result of the accepted white tail spider bite injury and its sequelae, for which he had periods of no current work capacity and underwent medical treatment; award for the applicant for weekly compensation pursuant to sections 36 and 37 of the 1987 Act; award for the applicant for past medical expenses pursuant to section 60 of the 1987 Act
DIRECTIONS:	The President directs that: 1. The respondent is to pay the applicant weekly payments: (a) from 5 January 2021 to 26 January 2021 at $1,425 per week pursuant to s 36 of the Workers Compensation Act 1987; (b) from 27 January 2021 to 8 February 2021 at $1,200 per week pursuant to s 37 of the Workers Compensation Act 1987, and (c) from 9 May 2021 to 25 May 2021 at $1,232 per week pursuant to s 37 of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s claimed past medical expenses for prescription medication, in the sum total of $43.50, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns an application for weekly compensation for two closed periods and past medical expenses in respect of a 2021 recurrence of an accepted white tail spider bite injury in 2007. For the reasons discussed below, the applicant’s claim for compensation is successful.

BACKGROUND

On 23 May 2007, Peter Velovski, the applicant worker sustained a white tail spider bite in the course of his employment as a Regulations Inspector with Bayside Council (the respondent). The applicant was inspecting an abandoned van when he felt a bite at the bottom part of his left leg. He subsequently suffered fevers and swelling and pain in his left leg. He was diagnosed as suffering from cellulitis of the left leg as a result of the spider bite. He was treated with antibiotics.
On 26 January 2011, the applicant sustained an accepted aggravation to his original spider bite injury. The applicant sustained swelling to his left leg, ankle and foot, after having walked over eight kilometres as part of his work duties with the respondent. He was advised by his treating medical practitioner to wear compression stockings to prevent any ongoing symptoms.
The applicant was paid compensation in respect of the 2007 injury and 2011 aggravation, including a period of nine weeks weekly payments of compensation and treatment expenses.
On or about 3 January 2021, the applicant attended his son’s house for a New Year party. He stood…

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: [2021] NSWPIC 276
Decision Date: 4 August 2021

CaseChat Overview and Summary

The case of Velovski v Bayside Council involved the applicant seeking weekly compensation and past medical expenses due to a recurrence of an injury from a white tail spider bite, which had been previously accepted. The dispute was heard in the Workers Compensation Division of the NSW Civil and Administrative Tribunal. The respondent, Bayside Council, contested the applicant’s claim for compensation for the recurrence of the injury, as well as the applicant’s claim for past medical expenses related to the condition.

The legal issues before the court revolved around determining when the weekly entitlement periods for compensation commenced and whether the applicant was entitled to compensation for the recurrence of the spider bite injury and its sequelae. The court had to consider whether the applicant experienced a re-emergence of symptoms in his left leg and whether these symptoms led to periods of no current work capacity and necessitated medical treatment. The court also needed to assess whether the applicant was entitled to compensation for the past medical expenses incurred as a result of the condition.

The court found that the applicant had experienced a re-emergence of symptoms in his left leg due to the recurrence of the white tail spider bite injury and its sequelae. The symptoms resulted in periods of no current work capacity and required medical treatment. The court applied the decision in Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37, which held that the recurrence of symptoms from a previously accepted injury can give rise to a new claim for compensation. The court awarded the applicant weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 and also awarded past medical expenses pursuant to section 60 of the same Act. The respondent’s objections to the claim were dismissed.

Orders