Welch v Modderkolk - [2024] NSWPIC 333

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Welch v Modderkolk [2024] NSWPIC 333
APPLICANT:	Kylie Welch
RESPONDENT:	Rutger & Mary A & Rodger D & Peter M Modderkolk
MEMBER:	Catherine McDonald
DATE OF DECISION:	25 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Worker suffered an accepted injury to her left elbow and involving her ulnar nerve when she was pinned between a cow and a metal pole; dispute as to whether she also suffered an injury to her cervical spine and left shoulder, not initially recorded by her general practitioner; Mason v Demasi; Davis v Council of the City of Wagga Wagga; Nominal Defendant v Clancy; Held – all claims remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment: Body systems: left upper extremity (elbow, shoulder and ulnar nerve); cervical spine, and TEMSKI scarring. Date of injury: 9 April 2015 Method of assessment: whole person impairment. 2. The documents to be sent to the Medical Assessor are: a. Application to Resolve a Dispute; b. Reply; c. MRI scan report of the left shoulder dated 14 July 2015, and d. this Certificate of Determination.

STATEMENT OF REASONS

BACKGROUND

Kylie Welch was employed as a farm hand on a dairy farm operated by R & MA and RD & PM Modderkolk (the Modderkolks). She suffered an injury on 9 April 2015 when she was crushed between a cow and a metal pole. The Modderkolks agree that Ms Welch’s left elbow was injured. Ms Welsch also says that she suffered an injury to, and/or consequential condition in her left shoulder and cervical spine, both of which are disputed by the Modderkolks.
Ms Welch claims permanent impairment compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The parties attended a conciliation conference and arbitration hearing on 28 May 2024 when Mr Gaitanis of counsel, instructed by Mr Quinn, appeared for Ms Welch and Mr B Jones of counsel, instructed by Mr Lott, appeared for the Modderkolks.
An issue as to admissibility of medical reports arose at the preliminary conference on 24 April 2024. The parties agreed at the conciliation conference that all reports should be admitted, subject to weight. The Modderkolks consented to Ms Welch relying on an MRI scan report in respect of her left shoulder dated 14 July 2015 which was omitted from the documents filed.
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 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 they have had sufficient opportunity to explore settlement of the dispute and that they have been unable to reach an agreed resolution.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this…

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.

Continue reading Welch v Modderkolk

Details

AGLC: Welch v Modderkolk [2024] NSWPIC 333
Case: [2024] NSWPIC 333
Decision Date: 25 June 2024

CaseChat Overview and Summary

In Welch v Modderkolk, the respondent, an employee, sought to have her claim for additional injuries recognised by the court. The primary dispute was whether the employee had also suffered injuries to her cervical spine and left shoulder, injuries that were not initially documented by her general practitioner. The case was heard in the Industrial Relations Commission of New South Wales. The legal issues before the court involved determining whether the respondent's claims for additional injuries were valid and whether the Commission had the authority to refer these claims to a Medical Assessor for further evaluation.

The court examined the principles established in cases such as Mason v Demasi, Davis v Council of the City of Wagga Wagga, and Nominal Defendant v Clancy, which outline the process for addressing claims of additional injuries in workers' compensation cases. It was necessary to determine if the respondent's claims were within the scope of the original injury and if the Commission had the power to remit the matter to a Medical Assessor for assessment. The court found that the respondent's claims for additional injuries were not precluded by the initial general practitioner's report and that the Commission had the requisite authority to refer the matter for further evaluation.

The reasoning of the court was grounded in the need to ensure that all potential injuries resulting from the original incident were properly assessed and compensated. The Commission was empowered to remit the matter to a Medical Assessor for further evaluation of the respondent's claims for injuries to her cervical spine and left shoulder. The court concluded that it was appropriate to remit all claims to the President for referral to a Medical Assessor to determine the full extent of the respondent's injuries.

The final orders of the court were that all claims made by the respondent, including those for injuries to her cervical spine and left shoulder, were remitted to the President for referral to a Medical Assessor. This decision ensures that the respondent's claims are thoroughly assessed and that any additional injuries are recognised and compensated accordingly.

Orders