Voudouris v TDV Constructions Pty Ltd

[2023] NSWPICPD 53

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53

APPELLANT:

Tom Voudouris

RESPONDENT:

TDV Constructions Pty Ltd

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-W3227/22

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

31 August 2023

ORDERS MADE ON APPEAL:

1. The appellant’s application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is declined.

2.   The Certificate of Determination dated 25 October 2022 is confirmed.

3.   This matter is referred to a medical assessor in accordance with the terms of the Certificate of Determination dated 25 October 2022.

CATCHWORDS:

WORKERS COMPENSATION – whether injuries with 0% permanent impairment can be included in a referral to a medical assessor – medical assessment for the purpose of s 39 of the Workers Compensation Act 1987 – principles regarding a ‘claim’ and ‘medical dispute’ considered – s 319 of the Workplace Injury Management and Workers Compensation Act 1998 – Shankarv Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18 discussed – Skates v Hills Industries Ltd [2021] NSWCA 142 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B Necovski, counsel

Parnell Legal

Respondent:

Mr A Combe, counsel

Rankin Ellison Lawyers

DECISION UNDER APPEAL

MEMBER:

Mr A Scarcella

DATE OF MEMBER’S DECISION:

25 October 2022

INTRODUCTION AND BACKGROUND

1. Mr Tom Voudouris, the appellant, was a builder and sole director of the respondent. He sustained multiple injuries in the course of his employment on 26 July 2016, when he fell several metres through a void in a building he was working in. He received workers compensation benefits for his injuries, including payment of weekly compensation and medical or related treatment expenses.

2. On 14 December 2021, Mr Voudouris ceased receiving weekly compensation by operation of s 39 of the Workers Compensation Act 1987 (the 1987 Act), on the basis that his injuries did not result in permanent impairment of more than 20% for an entitlement to weekly compensation beyond 260 weeks. In ceasing his weekly compensation, the respondent’s insurer relied on an independent medical report of Dr Stephen Rimmer, orthopaedic surgeon, dated 27 April 2021.[1] In this report, Dr Rimmer assessed the appellant with a combined 8% whole person impairment (WPI), comprised of 2% WPI in respect of the right elbow and 6% WPI in respect of the left wrist. Dr Rimmer also found there to be nil impairment (0%) to the right femur and right knee.

   [1] Reply to Application for Assessment by a Medical Assessor (reply), p 10.

3. On 24 February 2022, the appellant wrote to the respondent’s insurer by email seeking they review the decision to terminate his weekly payments under s 39 of the 1987 Act. In this request, the appellant’s representative submitted that s 39 did not apply to the appellant and the “insurer should be satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree…